
    Ideal Wrench Company, Appellant, v. Garvin Machine Company, Respondent.
    
      Breach of contract to manufacture articles the same as a model furnished— submission to the jury of the question of reasonable time for performance — measure of damages—warranty surviving acceptance.
    
    In an action brought July 16, 1898, to recover damages for the breach of a contract bearing date March 6, 1897, hy which the defendant agreed to manufacture for the plaintiff’s assignor 10,000 bicycle wrenches and deliver the same to him “within reasonable time and in quantities to suit,” it appeared that the wrenches were to he made in accordance with a model furnished by the plaintiff's assignor; that the latter was to pay the defendant §1,500 for the tools required to make the wrenches and to pay the defendant §500 at the time of signing the contract, which sum was to be applied to the last payment for wrenches to be delivered on the contract, and that the defendant was to receive, within thirty days after delivery, a certain sum for each wrench.
    Upon the trial the plaintiff gave evidence tending to show that its assignor fulfilled the contract on his part by delivering the model, paying the §1,500 for tools and §500 to apply on the last payment; that the first 9 wrenches were delivered in May, 1897; that 445 were delivered in June, none in July, 513 in August, 500 in September, and 500 in October, of that year; that about this time the plaintiff’s assignor rejected 500 wrenches which did not comply with the model, and that thereafter the defendant failed to tender the delivery of any more wrenches; that many of the wrenches accepted by the plaintiff’s assignor, without knowledge that they were defective, were subsequently rejected; that the plaintiff’s assignor had paid for all wrenches delivered by the defendant.
    
      Held, that the plaintiff had made & prima facie case for submission to the jury and that it was error for the court to dismiss the complaint;
    That the court would not be warranted in deciding as matter of law that a reasonable time had not elapsed for the defendant to perform;
    That upon the record the plaintiff was entitled to recover the §500 which its assignor had paid to the defendant to he applied on the final payment;
    That as the contract provided for a sale by sample, there was a warranty, which survived acceptance, that the wrenches would substantially conform to the sample;
    
      That as to the wrenches which were returned as not conforming to the sample, the plaintiff’s assignor would, in the absence of other evidence of the amount of damages, be entitled to recover the purchase price thereof.
    Semble, that as to defective wrenches delivered, accepted and retained, the plaintiff’s damages would be the difference between the value of the wrenches if they had been as warranted and their actual value in their defective condition, and such special damages as might be properly pleaded and proved.
    Appeal by the plaintiff, the Ideal Wrench Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of January, 1901, upon a nonsuit granted after a trial at the New York Trial Term.
    
      Sumner B. Stiles, for the appellant.
    
      Arthur J. Baldwin, for the respondent.
   Laughlin, J.:

The action is brought to recover damages for breach of a contract made between the defendant and Walter S. Stokes, who assigned his interest in the contract and claim for damages thereunder to plaintiff. The contract was in writing and bears date the 6th day of 'March, 1897. The defendant therein agreed to manufacture for Stokes 10,000 bicycle wrenches and deliver the same to him within reasonable time and in quantities to suit.” The wrenches were to be made according to a model to be furnished by Stokes, and were to be “ made in a first-class manner, in every way equal to that of the model submitted.” Stokes was to pay $1,500 for the tools necessary for making the wrenches and was to pay to defendant $500 at the time of signing the contract, which was to be applied to the last payment for wrenches to be delivered under the contract. Seventy-five hundred of the wrenches were to be finished in blue and 2,500 in nickel, and the defendant was to receive therefor 50 and 75 cents each respectively within thirty days after delivery.

Upon the trial plaintiff gave evidence tending to show that Stokes fulfilled his contract by delivering $500 to the defendant to apply as a last payment, by delivering the model, and by paying the $1,500 for tools; that he paid for all the wrenches delivered under the contract, which aggregated about 2,000; that not one in four of the wrenches so delivered corresponded Avith the model in that the sleeve was about a third smaller in thickness than the model, rendering the wrenches weak and unserviceable; that the first delivery was on May 22, 1897, consisting of 1 wrench only, and 9 were delivered that month; 445 were delivered in June; none in July; 513 in August; 500 in September, and 500 on October 7, 1897; that defendant Stokes about this time rejected 500 wrenches which were deficient in size and strength of the sleeve, and that defendant thereafter failed to tender the delivery of any further wrenches in compliance with its contract, and that many of the wrenches accepted by. Stokes without knowledge of their being thus deficient were subsequently rejected and returned by him to the defendant. The action was not commenced until the 16th day of July, 1898.

In this state of the evidence the court would not be warranted in deciding as matter of law that a reasonable time had not elapsed for defendant to perform. The most that defendant would be entitled to would be to have that question submitted to the jury. It is not necessary to determine now whether the court should have decided as matter of law that the defendant was guilty of a breach of contract, for it offered no evidence. It is only proper to determine whether the plaintiff máde a prima facie case for submission to the jury. It is argued with much earnestness that plaintiff failed to show any damage even if it succeeded in showing a breach of contract. We do not agree with this contention. On the evidence presented the plaintiff . was clearly entitled to recover as damages the $500 deposited with the defendant which was to be applied on the final payment. It will be remembered that all wrenches delivered were paid for in addition to this payment of the $500. This record contains evidence that the defendant, after delivering and being paid for about 2,000 wrenches, failed to perform its contract. This constituted a breach of contract which, in the absence of all other proof of damages, authorized the recovery of the $500 as damages. The jury would have the right to infer that if the wrenches had been manufactured and delivered according to contract, they would have been worth at least the sum Stokes agreed to pay therefor, and if that amount only was their value, the plaintiff’s damages would clearly be the $500. (Todd v. Gamble, 148 N. Y. 382; Booth v. Spuyten Duyvil Rolling Mill Co., 60 id. 487; Benj. Sales [3d Am. ed.], 900; Hamilton v. Ganyard, 34 Barb. 204; 3 Keyes, 45.)

After such breach of the contract on its part, no consideration remained upon which the defendant could hold these moneys. It had failed to perform the contract by the performance of which alone it would be entitled to retain them.

We are also of opinion that there was other evidence of damages for the consideration of the jury. The facts were not brought out pointedly by the testimony, but the fair inference is that at one time twenty-nine of the wrenches .accepted and paid for by Stokes were returned to the defendant on account of defects which rendered them unmerchantable and worthless, and that other wrenches were 0 returned from time to time for the same reason.

As we view the contract, the sale was by sample and there was a warranty that the wrenches would substantially conform to the sample and this warranty survived acceptance. (Zabriskie v. Central Vermont Railroad Co., 131 N. Y. 72; Brigg v. Hilton, 99 id. 517.) It would seem that the plaintiff would be entitled to recover as damages the purchase price of these wrenches. There being no other evidence, the jury would have a right to say that the wrenches thus returned, had they corresponded with the sample, would have been, worth the price the defendant was to receive therefor. (Todd v. Gamble, supra.) There was not sufficient evidence to go to the jury on the damages sustained on account of the wrenches delivered, accepted and retained, for there was no evidence of their value in their defective condition. The rule of damages in such case would be the difference between the value of the wrenches if they had been as warranted and their actual value in their defective condition, and such special damages as might be properly-pleaded and proved. (Brigg v. Hilton, 99 N. Y. 517; Bruce v. F. D. & C. H. Co., 47 App. Div. 273).

It follows that the plaintiff was improperly nonsuited, and the judgment must be reversed and new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., and Ingraham, J., concurred ; Patterson, J., concurred in result.

Judgment reversed, new trial ordered, costs to appellant to abide event.  