
    Henry L. Boughton, Respondent, v. Edmund C. Petigny, James D. Petigny and Mme. Therese Petigny, Composing the Firm of Petigny, Freres & Co., Appellants.
    (Supreme Court, Appellate Term,
    October, 1901.)
    Measure of damages for breach of contract — When profits are recoverable.
    Where embroiderers contract with a house furnisher to embroider for him certain draperies made of a material specially manufactured for him and having no market value or duplicates, while knowing that he requires the completed draperies for the performance of a contract made by him with a third person, their failure to keep their contract, resulting from accidental damage to the material while it was in their hands, entitles the house furnisher to recover of them the value of the material, that of certain labor thereon supplied by him, and also the profit which he would have made had he been able to perform his contract with the third person — it appearing that that contract price was reasonable.
    Appeal by the defendants from a judgment in favor of the plaintiff rendered by the Municipal Court of the city of New York.
    
      Lester & Graves, for appellants.
    Jeroloman & Arrowsmith, for respondent.
   Gildersleeve, J.

This action is brought to recover for breach of contract. The plaintiff is engaged in the business of decorating and furnishing houses, and made a .contract to furnish a pair of portieres and other drapery to a Mr. Eewberger for $700. The defendants entered into an agreement with the plaintiff to do the necessary embroidery on the material provided by the plaintiff for the draperies. While this material was in the possession of defendants, an accident happened, whereby a portion of the material was damaged to such an extent that it could not be used in carrying out the contract that plaintiff had made with Mr. Newberger. The material could not be duplicated. It had been manufactured especially for the draperies in question and had no market value. The unfortunate accident that resulted in damage to the material prevented the defendants from keeping their contract with the plaintiff, and was the immediate cause of the inability of plaintiff to carry'out his agreement with Mr. Eewberger. "Upon conflicting evidence, the trial justice found all disputed facts in favor of plaintiff and awarded him damage in the sum of $500. This sum comprises the value of the materials and labor supplied by the plaintiff, amounting to $295.22, and the profit of $204.78, which plaintiff would have received had he carried out his contract with Mr. Eewberger.

The crucial question raised on this appeal, and the only one which seems to call for discussion, is as follows, viz.: Should the rule allowing special-damages be applied to this case? It is the claim of the appellants that the Newberger contract and the surrounding circumstances were "not so within the knowledge of defendants as to become part of their obligation. From a careful reading of the evidence it must be said that there is sufficient testimony to warrant the trial justice in concluding, as he • did, that the defendants, at the time they undertook to do the work in question, knew that the work they contracted to perform was to enable the plaintiff to carry out his contract with some party.1 It cannot justly be said that the name of the latter had been disclosed at that time, nor that the sum the plaintiff was to receive had been mentioned. Ignorance of these two facts, ’ however, does not relieve the defendants from the consequences of the nonperformance of their contract. The submission to the defendants of a piece of the silk fabric used in the paneling of the wall where the draperies were to go, the loaning to the plaintiff by the defendants of a sample of applique and hand embroidery, and the statement to defendants by plaintiff’s employee that he wanted to show this to a customer from whom he thought he could get an order for drapery, constituted special circumstances, from which, in view of the character of plaintiff’s business, which was well known to defendants, the latter must have understood that they were subcontractors upon whom the plaintiff depended for the carrying out of the contract which he had stated to the defendants he hoped to get. The circumstances disclosed to the defendants indicated to them unmistakably that the plaintiff had obtained the contract that he was seeking at the time he got the sample of applique and embroidery. The damages in the contemplation of the parties, resulting from the failure of defendants to complete the contract made under these circumstances, would be the amount of injury ordinarily .flowing from a breach of such a contract as plaintiff had made with Hr. Newberger, and cannot well be said to be less than the actual loss sustained. It is not claimed that the price agreed upon between plaintiff and Mr. Newberger was extravagant or unreasonable. It is clearly established that the material, supplied by plaintiff, in the condition it was when turned over again to the plaintiff by the defendants, has no market value. The loss suffered by plaintiff is fixed and defined. It was solely due to the failure of defendants to perform their contract. It consisted, as we have seen, of the value of the materials and labor supplied by the plaintiff and the profit he would have received had he completed his contract with Newberger.

We think the rule for estimating the damages, adopted by the court below, under the circumstances of this case, was correct. It follows the law as declared by the Court of Appeals in lie case of Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487. See also Murdock v. Jones, 3 App. Div. 221.

We find no ground for disturbing the judgment, which should be affirmed, with costs.

Freedman, P. J., and McAdam:, J., concur.

Judgment affirmed, with costs.  