
    Louis Schutzman, Respondent, v. Daniel Lehman, Appellant.
    (Supreme Court, Appellate Term,
    January, 1909.)
    Damages—Particular contracts and relations — Contracts for sale or purchase of goods — Where no market exists — Special damages.
    Where, in a contract for the sale of goods, the seller knows that the buyer has an agreement to sell them to a third party at certain prices shown to be fair and reasonable, and the seller fails to deliver the goods, the rule that the damsges are to be measured by the difference between the contract price and the market price at the time and place of delivery does not apply, where it appears there is no market for the goods and the buyer was- unable to procure them elsewhere.
    In such a case, the buyer may recover the special damages he has sustained by reason of his inability to carry out his agreement with such third party.
    Appeal by tbe defendant from a judgment in favor of the plaintiff, rendered in tbe Municipal Court of the city of Eew York, first district, borough of Manhattan.
    Edwin M. Otterbourg, for appellant.
    Grauer & Rathkopf, for respondent.
   Gildersleeve, J.

Plaintiff had agreed with certain parties to sell to them certain goods, at certain prices, which pj aintiff, having qualified as an expert, stated to be the fair and reasonable value of the goods at the time. In order to carry into effect these agreements the plaintiff ordered the desired goods from defendant, who agreed to deliver the same within certain dates. At the time of making such contract with defendant’s agent, plaintiff informed him of these agreements with the third parties. The goods, or a considerable portion thereof, were never delivered by defendant, and plaintiff, after trying in vain to buy the same kind of goods in the market, was unable to complete his agreements with the third parties. The court gave jndgment for plaintiff. Defendant appeals. The rule is that, in cases where the vendor fails to deliver the goods, the measure of damages is the difference between the contract price and the market price at the time and place of delivery. In the case at bar, however, there was no market value, inasmuch as plaintiff was unable to procure the goods in the market. The only evidence of the real value of the goods is plaintiff’s testimony that the price at which he agreed to sell them to the third parties was the fair and reasonable value of the goods at the time, i. e., at the time of the agreements with the third parties, but sometime prior to the time when the defendant was to deliver the goods. However, defendant had knowledge of the agreements with the third parties, at the time of making the contract with plaintiff, and was, therefore, put on his guard as to the special damages to plaintiff that would flow from defendant’s failure to complete his contract. The rule is that special damages are allowed when the general rule above stated will not furnish full indemnity, and if there is no market for the article at the place where and time when it should be delivered, and if it cannot be had there with reasonable diligence, and if the buyer suffers damages, because of the seller’s, failure to deliver, which are the proximate and natural consequences of such failure, these damages can be recovered. See Parsons v. Sutton, 66 N. Y. 98. The court allowed to plaintiff the special damages suffered as the proximate and natural consequence of defendant’s failure to complete his contract. Under the circumstances this ruling was not error. As no other question is raised by appellant on this appeal, the judgment should be affirmed, with costs.

Bischoff and Guy, JJ., concur.

Judgment affirmed, with costs.  