
    TODD et al. v. GAMBLE et al.
    (Supreme Court, General Term, First Department.
    December 15, 1893.)
    L Damages—Measure for Breach of Contract.
    In an action for refusal to receive goods to be manufactured by plaintiff for defendant, it is not error to charge that “in such an action the usual measure of damages is the difference between the contract price and the cost of production,” where it had already been charged that it was a question of fact for the jury whether the goods had a market value, and stated the rule of damages in case such market value should be found.
    
      2* p A ATT?._ÍÍEB A.TB
    Defendant agreed to buy at a certain price all the soda ash used in their business for one year from plaintiff, a manufacturer. The contract provided that the barrels in which the goods were to be shipped were returnable to plaintiff at 80 cents each. There was evidence that the actual cost to plaintiff of the barrels was 76 cents each. Ueld, in an action for breach of such contract, that the amount of rebate to which defendant was entitled on account of the barrels was the difference between the amount specified in the contract of sale and the actual cost of the barrels.
    8. Appeal—Offer to Meet Objections—Failure to Accept.
    In an action for refusal to accept goods defendant moved to strike out plaintiff’s evidence of value on the ground it did not fix the price as of the day of the breach. Plaintiff then offered to show the price on that day, and to prove that it remained so during the whole time. Defendant remained silent, standing on his strict legal right to have his motion to strike out granted or denied. Eeld, that the denial of such motion was not assignable as error.
    Appeal from circuit court, Hew York county.
    Action by Albert U. Todd and another, composing the firm Of Feuchtwanger & Co., against ¡James Gamble and others, composing the firm of Proctor & Gamble. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, defendants appeal.
    Affirmed.
    This action was brought to recover damages for defendants’ failure to. receive and pay for silicate of soda to be manufactured and delivered under an executory contract in writing, as follows:
    “March 1st, 1887.
    “We hereby agree to furnish Proctor & Gamble whatever quantities of silicate of soda they will require to use in their factories during one year from date, the same to be of our regular standard make, and as per price and terms annexed: Price, $1.10 per 100 lbs., F. O. B. in New York. Terms, cash in 60 days. Barrels returnable at 80c. each, delivered in good condition at It. R, depots in N. Y. Messrs. Proctor & Gamble reserve the right to use such amounts of English silicate as is necessary in their business, to which we agree. - L. Feuchtwanger & Go.
    “Per Geo. B. Lincoln, Jr.
    “Proctor & Gamble.”
    Under this contract the plaintiffs delivered a certain quantity of the silicate between March 1 and April 22, 1887, upon which latter date the defendants notified the plaintiffs that no more silicate of soda would be received under Jhe contract. It was conceded on the trial that between the date last mentioned and March 1, 1888, the defendants purchased from other manufacturers, and used in their business, 1,582,468 pounds of American silicate of soda.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    Carter, Hughes & Kellogg, (Frederic R. Kellogg, of counsel,) for appellants.
    Benjamin F. Tracy, (Albert Boardman, of counsel,) for respondents.
   O’BRIEN, J.

It being conceded that defendants are liable for breach of the contract, the questions presented upon this appeal relate to the measure of damages, and the competency of evidence admitted or excluded upon the trial. On the former appeal in ■the same case béfore .this court (67 Hun, 38, 21 N. Y. Supp. 739) we held that:

“When an executory sale Is made of articles having a marketable value, which the vendee refuses to accept, the measure of his liability is the difference between the contract price and their actual value, which the law deems equivalent to their value in the market. But, if the subject of the sale has ■no market value, the measure of the vendee’s liability is still the difference between the contract price and the actual value of the goods; the actual value being a factor in each case in determining the question of damages. When the value of the article cannot be determined by what it will sell for in the market, it must be ascertained in other ways; sometimes by showing the cost of production.”

It appearing upon the former trial that there was a question .as to whether or not .the commodity had a market value, the judgment was reversed, because the trial judge had held as a matter of law that the article was without a market value, and permitted damages to-be measured by the difference between the cost of production and the contract price. We also held that, before the latter measure of damages could be applied, the burden was upon the plaintiff to show that the article had no market value, and that apon conflicting evidence this was a question of fact for the jury, and not one of law for the court. In addition to what formerly appeared, we have on the part of the defendants the testimony of a witness in substance to the effect that he was a member of a firm that dealt in silicate of soda; that the firm bought it from manufacturers, and sold it to consumers; and that it kept a stock on hand of from 15 to 30 barrels, which it sold mostly to soap makers. This, together with other testimony presented here, as upon the former ■appeal, by defendants, was to offset the testimony offered by plaintiffs tending to prove that there was no market value for the commodity. It is insisted upon this appeal that in the present state of the record it was error not to hold as a matter of law that silicate of soda had a market value. We do not think it necessary to add anything to our former opinion on this subject, further than to say that we think the disposition made by the trial judge was correct.

Though not acquiescing in this view, but assuming that it is right, the appellants further contend that the court’s charge of the plaintiffs’ request that “in such an action the usual measure of damages is the difference between the contract price and the cost of production” is reversible error. This position we do not regard as tenable, because the court in its main charge had very fully presented to the consideration of the jury the question as one for their determination as to whether there was or was not a market value for the silicate; and the jury could not have understood this instruction, presented by the court at plaintiffs’ request, otherwise than as a rule to guide them in the event of their determining that there was no market value. If the defendants had desired to avoid any confusion, they should have called the court’s attention to the fact that such a rule was applicable only where there is no market for the goods. The jury having found, however, that there was no market value, the instruction or request was a presentation of a mere abstract question of law, which did not mislead the jury, and could not have injured the defendants, and would not, therefore, be proper ground for reversing a judgment in other respects valid.

It is further claimed that the verdict is excessive. The learned court charged the jury:

“The plaintiffs, however, were obliged in their contract to make an allowance for barrels returned. Mr. Oscanyan says that in the 40 cents which he has computed as the cost of producing this article these barrels are put in at 76 cents. Should you come to the conclusion that there was no market value, and that the plaintiffs are entitled to recover the difference between the cost of the production and the contract price, you will allow the defendants a deduction of four cents upon the number of barrels which were called for by the 1,582,468 pounds, which has been stated by General Tracy, and, I suppose, is conceded, to be 2,877 barrels, or thereabouts.”

The defendants excepted to this charge, and it presented the question whether, in estimating the rebate, the defendants should have been allowed for the barrels 80 cents, or merely the difference between 76 and 80 cents, as charged by the court. It was shown that a barrel would hold 550 pounds of silicate of soda, that the cost of production was 40 cents a hundredweight, or $2.20 per barrel, and that in this was included 76 cents as the cost of the barrel. By following the instructions of the court the jury would proceed to a computation of plaintiffs’ damages as follows:

This leaves the transaction with plaintiffs in possession of their money profit of $3.05 and the returned barrel, which latter article they are entitled to have turned into its money value, and added to their profit on the barrel’s contents. The only evidence showing the value of a returned barrel is that furnished by the contract, in which plaintiffs agree to a valuation of 80 cents; but, as one of the plaintiffs testified it only cost 76 cents originally, it is fair to say it was worth no more after use. Adding, then, 76 cents as the value of the returned barrel to plaintiffs’ profit on the contents of the barrel, makes $3.81 per barrel as the sum for which plaintiffs would be entitled to recover. There being 2,877 barrels, this number, multiplied by 3.81, gives $10,961.37, as the amount due the plaintiffs, which is the same amount as that arrived at by following out the instruetionsof the court. The verdict in the case was $10,692.19, or $269.18 less than the jury would have been justified in allowing under the ruling of the court. The charge, therefore, on this subject does not present error as against the defendants.

This consideration, throwing out the difference between what the jury would have been entitled to assess and what in fact they did assess, equally disposes of many of the other objections urged upon our attention. Thus is answered the suggestion that it was reversible error to permit testimony concerning conversations between the-parties preceding the written contract, and concerning the original and increased capacity of the plaintiffs’ plant before and after the-making of the contract, together with any evidence as to the capacity of plaintiffs’ plant previous to the making of the contract, and the fact that subsequent thereto its capacity was increased. Though-it would appear that such testimony was either incompetent or immaterial, it is shown by the result arrived at by the jury that no-injury was done thereby to the defendants.

Another error assigned is that, in violation of the rule relating to-damages, the plaintiffs’ testimony purported to average the price of the various elements entering into the cost of production during the-whole contract year, and did not specify the price as of the time when the breach occurred. This objection was presented upon a motion to strike out the testimony which had been given by the-plaintiffs’ witness as to the cost of production; and when the motion was made the plaintiffs’ counsel, in answer thereto, offered to fix the cost as of the 22d of April, the date of the breach, and to further prove that the price remained so throughout the year. Instead, however, of defendants electing to fix upon a date when the-damages should be estimated as of that time, their counsel remained silent, standing upon his strict legal right to have his motion to strike out granted or denied; to the denial of which motion, he excepted. We do not think that this exception is good. The plaintiffs, upon their theory as to how the damages were to be estimated, averaged the cost of production throughout the year, and presented testimony showing such cost. Thereafter the defendants, having presented the question that this mode Was not the proper one, were met by the offer of the plaintiffs’ counsel to conform to their view as to fixing the date, and to correct the proof; but the defendants seemed more anxious to get a bad instruction than to get evidence as to the true measure of damages.

It is further insisted that the jury, in estimating the cost of production of the article, failed to include any portion of the fixed charges by way of loss of interest, taxes, insurance, etc., upon the value of the plant at which the commodity in question was manufactured. It does appear that upon cross-examination the defendants elicited the fact that the total business of the plaintiffs during-the contract year in question was about $200,000, of which the silicate of soda contracted to be sold to these defendants would have equaled the sum of about $17,000; and from this the argument is adduced that 17-200 of the fixed charges should have been allowed by the jury. It thus appears that what items were included and what, excluded in fixing the cost of production were before the jury, and that the amount awarded was less than the full amount based upon multiplying the cost of producing a single barrel by the total number of barrels provided for in the contract; and we cannot, therefore, say that the jury did not make some allowance for this item of fixed charges in arriving at their verdict.

The appellants’ further contention that the court erred in excluding defendants’ cross-examination as to the total annual profits of the plaintiffs’ firm is not entitled to much weight, because the extent to which cross-examination shall be allowed is within the discretion of a trial judge; and where, as here, such discretion was exercised for the purpose of preventing what would have been practically an accounting with respect to plaintiffs’ business, it was proper for the court to prevent the cross-examination exceeding the legitimate bounds. We think, therefore, that the judgment was. right, and should be affirmed, with costs. All concur.  