
    Robert A. Fowler and Richard A. Silberhorn, Appellants, v. Gress Manufacturing Company, . Respondent.
    (Supreme Court, Appellate Term, Second Department,
    April, 1916.)
    Contracts — executory — measure of damages — Personal Property Law, § 148.
    A vendee in an executory contract for the sale of merchandise is entitled to recover at least nominal damages for the vendor’s failure to make delivery.
    Under section 148 of the Personal Property Law (Laws of 1911, chap. 571) which provides "When there is an available market for the goods in question, the measure 'of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought, to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver,” the buyer of lumber then in harbor available for delivery before the date when the seller refused to deliver is entitled to recover the difference between the contract price and the current or market price for lumber available for delivery on the date of such refusal. If the lumber could have been purchased afloat within the port of New York, at which point it was to be delivered, the buyer’s measure of damages would be the difference between the contract price and such market price instead of the market price for lumber brought from the south at some indefinite time. But, if there was no available market for lumber afloat, the market price of lumber of the kind and quantity specified in the contract without regard to whether it came from yards or vessels must be taken.
    Appeal from a judgment rendered in the Municipal Court of the city of New York, borough of Brooklyn, first district, on the 15th day of January, 1916, in favor of the defendant, dismissing plaintiffs’ complaint on the merits.
    Alfred R. Bunnell, for appellants.
    Conklin & Reid (Harry D. Holden and William R. Conklin, of counsel), for respondent.
   Blackmar, J.

The contract and the breach by the defendant were established beyond dispute and found by the court. The plaintiffs were therefore entitled to judgment, at least for nominal damages. But the real question litigated was whether plaintiffs had proved substantial damages; and we think the decision reached by the learned trial justice, so concisely stated in his opinion, requires a consideration of that question by this court.

The action was brought for the failure of the defend-, ant, the vendor in an executory contract for the sale of merchandise, to make delivery. The measure of damages is fixed by statute as follows (Pers. Prop. Law, § 148): Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the "market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.”

The merchandise was 40,000 feet of long leaf yellow pine, dressed on one side. No time was fixed for delivery in the contract; but the defendant, by a letter written subsequently to the date of the contract, stated' that the lighter could not be at plaintiffs’ place “ before Thursday or Friday of next week;” and, as the lumber was on a lighter in the harbor, prompt delivery was anticipated by both parties. On November 16, 1914, defendant arbitrarily refused to deliver the goods. According to the words of the statute, as the contract fixed no time for delivery, the damages must be ascertained as of the date of the refusal, to wit, November sixteenth.

Stress is laid on the difference between a wholesale and retail market, and the decision that plaintiffs had not proved damages rested on the use of these terms. The witnesses did use these terms; but in fact the real difference between the two markets was that one was a market for the lumber afloat, either in sailing vessels or lightered from steamers, as brought from the south; and the other was a market for the lumber sold from the yards. The price of lumber delivered from the yards, whether in large or small amounts, was much greater than for that afloat, because subjected to the added expense of handling. There was no lumber afloat for immediate delivery in the harbor of New York on November sixteenth. The only way in which plaintiffs conld have obtained that amount, at what the witnesses called ‘1 wholesale, ’ was to buy it for shipment from the south. It might have taken weeks to get delivery. But the plaintiffs did not purchase lumber to be brought from the south. They bought lumber then, when the contract was made, in the port of New York lying on a lighter, delivery of which was practically immediate. They, were not indemnified if compelled to buy and wait an indefinite time for arrival from the south. The letter written by the plaintiffs, after the breach of the contract, did not change the rights of the parties, which were fixed when the contract was breached.

If it can be established that there was an available market for lumber then in the harbor of New York, the price for which did not exceed the contract price, the judgment should be for nominal damages. But if that price was only for lumber to be brought at some indefinite time in the future from the south, then the damages are measured by the market or current price in any other available market. It seems from the evidence that the amount and kind of lumber in question could have been bought in the port of New York on November sixteenth. There was therefore an available market. If there was such an available market the plaintiffs were entitled to resort to it to measure their damages. If the defendant suffers on account of the enhanced price, being the difference between the price of lumber afloat and lumber in the yards, it is the result of its breach of the contract. The statutory measure of damages should not be distorted to save a defendant who has deliberately and without excuse broken his contract.

We have carefully considered whether the conclusion of the learned trial justice, that plaintiffs “ suffered no damages,” could not be sustained by the evidence of the market in Maurer and Newark, N. J But we are not satisfied that the merchandise could have been purchased there, loaded into lighters and brought and delivered f. o. b. plaintiffs’ dock at the contract price.

We state in conclusion as follows: First. Plaintiffs, having purchased merchandise then in the harbor of New York available for delivery before the date when defendant refused to deliver, are entitled to the difference between the contract price and the current or market price for lumber available for delivery on November 16,1914. Second. If the lumber could have been purchased afloat within what is recognized as being the port of New York, in its commercial and not geographical or political sense, this is the market price to be taken; but not the market price for lumber to be brought from the south at some indefinite time. Third. If there was no available market for lumber afloat, then resort should be had to any other available market, and this means a market where there is a current or market price for lumber of the kind and quantity specified in the contract, without regard to whether it comes from yards or vessels.

The judgment is reversed and a new trial ordered, with thirty dollars costs to the appellants to abide the event.

Kapper and Callaghan, JJ., concur.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  