
    TODD et al. v. GAMBLE et al.
    (Supreme Court, General Term, Fifth Department.
    January 13, 1893.)
    1. Sale—Failure to Accept Goods—Measure of Damages. Where a vendor agrees to manufacture goods to be delivered as ordered by the vendee, to he paid for after each successive delivery, and the vendee, after accepting and paying for a part, gives notice that he will not receive or pay for the rest, the vendor may recover damages for breach of contract without manufacturing or tendering the remainder of the goods; and the measure of damages is the difference between the contract price and the actual value of the goods at the time and place appointed for their delivery.
    
      2. Same—Proof of Value. Where the value of the article cannot be determined by its selling price on the market, it may be shown by the cost of production; but whether the goods have a market value is always a question of fact for the jury, and not of law for the court.
    Appeal from circuit court, New York county.
    Action by Albert' U. Todd and another against James Gamble and others. From a judgment entered on a verdict for plaintiffs, and from an order denying a motion for a new trial made on the minutes, defendants appeal. Reversed.
    This action was brought to recover damages for defendants’ failure to receive and pay for silicate of soda, tobe manufactured and delivered under an executory . contract. The plaintiffs were engaged in this state in the manufacture and sale of silicate of soda, which is used in manufacturing laundry soap, in which business'the defendants were engaged in the state of Ohio. The parties entered into a written contract, by which the plaintiffs agreed to thereafter deliver, and the defendants to receive, free on board the cars at the city of New York, all of the American silicate of soda, of the plaintiffs’ regular standard make, which the defendants should use in their busiriess between March 1, 1887, and March 1, 1888, for §1.10 per hundred pounds. Under this contract the plaintiffs delivered 150 barrels of soda in March, and 200 in April, 1887, containing 192,308 pounds, which was accepted and paid for. April 22, 1887, the defendants notified the.plaintiffs that no more silicate of soda would be received under the 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 O’BRIEN, P. J., and BARRETT and FOLLETT, JJ.
    Carter, Pinney & Kellogg, (Frederic R. Kellogg, of counsel,) for appellants.
    Benjamin F. Tracy, (Albert B. Boardman, of counsel,)for respondents.
   FOLLETT, J.

The existence of the contract, and that it was broken by the defendants, were facts conceded on the trial, as was also the quantity of American silicate of soda which defendants purchased of manufacturers other than the plaintiff, and used in their business, during the term for which the contract ran. In case a vendor agrees, by an executory contract, to manufacture goods, to be delivered from time to time as ordered by the vendee, to be paid for after each .successive delivery, and the vendee, after having accepted and paid for a part, gives notice that he will not receive or pay for the rest, the vendor may recover damages for the breach of the contract without manufacturing or tender? ing the remainder of the goods. Windmuller v. Pope, 107 N. Y. 674, 14 N. E. Rep. 436; Dingley v. Oler, 11 Fed. Rep. 373; Ripley v. McClure, 4 Exch. 345. In such a case the vendor is not entitled to elect between several remedies, as in case of a sale of goods in existence and identified, or in case goods are manufactured before the contract is rescind ed, but be is confined to recovering the difference between the contract price and the actual money value of the property at the time and place appointed for their delivery. Windmuller v. Pope, supra; Borries v. Hutchinson, 18 C. B. (N. S.) 445. This rule of liability, as ■well as the one above stated for ascertaining the amount of the liability, seems to be acquiesced in by the learned counsel for both parties to this litigation. Both agree that when an executory sale is made of articles having a market 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. In this case the court ruled that the measure of the defendants’ liability was the difference between the contract price and the cost of production, impliedly holding that under the evidence there was no question of fact as to whether the goods had or had not a market value. The court was requested to charge that the jury could not consider the cost of producing the soda, unless they found that it had no market value, which was refused, and an exception taken. The defendants also requested the court to rule and charge that the burden was on the plaintiffs to show that the silicate of soda had no market value, before evidence of the cost of production could be received or considered by the jury, which, was also refused, and an exception taken. . Thus the court determined, as a matter of law, that the article was without a market value. We think this was error. One of the plaintiffs was the only witness called in their behalf on this question, who testified to facts which would have authorized the jury to have found that the goods had no market value; but he admitted that on a former trial he testified to the market price of the article at the time the contract was made, and for six months following. This witness being an interested one, his credibility was for the jury. The evidence of Mr. Lincoln, taken on the former trial, was admitted on the last one, in which he stated the market prices of silicate of soda between March 1, 1887, and'March 1, 1888. The burden was on the plaintiffs to show that the article had no market value, and, under the state of the evidence disclosed by the record, whether it had or had not such a value was a question of fact for the jury, and not one of law for the court. In Paving Co. v. Howell, 7 N. Y. St. Rep. 494, damages were sought to be recovered from a vendee for refusing to accept paving granite. The plaintiff insisted that the actual value of the goods was to be ascertained by proving the cost of production, while the defendants contended that their market value was proof of actual value. The trial court held, as a matter of law, that the granite had no market value, and refused to submit that» question as one of fact to the jury, which was held to be error. The judgment and order should be reversed, and a new trial granted, with costs to abide the event. All concur.  