
    SCHLOTTMANN v. E. I. DU PONT DE NEMOURS POWDER CO.
    (Circuit Court, S. D. New York.
    March 5, 1910.)
    ContRaots (§ 3?>7) — Action for Breach— Sufficiency on Complaint.
    The complaint in an action by a vendor for breach of contract in wrongfully preventing a test to determine tile value of the property held insufficient for lack of averments that plaintiff was damaged.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. § 1685; Dee. Dig. § 337.]
    At Law. Action by William H. Schlottmann against the E. I. Du Font de Nemours Powder Company. On demurrer to complaint.
    Demurrer sustained.
    Kellogg & Rose, for plaintiff.
    Townsend, Avery & Buttner, for defendant.
    
      
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   LACOMBF, Circuit Judge.

This case seems to be clearly within the various decisions in the Hopedale and Storage Battery controversy. Hopedale Electric Co. v. Electric Storage Battery Co., 39 App. Div. 451, 57 N. Y. Supp. 422; Id., 96 App. Div. 344, 89 N. Y. Supp. 325; Id., 184 N. Y. 356, 77 N. E. 394. To recover damages for the breach there should be averments that plaintiff was damaged by defendant’s wrongful acts in depriving him of the opportunity to have a test made of the value of the property. In so deciding the court is not to be understood as expressing any opinion on the measure of damages, or as to what presumptions may or may not arise from a breach of this sort.

Demurrer sustained, with leave to amend complaint within 20 days.  