
    John E. Owen, Resp't, v. Owen Matthews et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed July 1, 1892,)
    
    1. Sale—Breach of contract—Damages.
    In an action for goods sold, the answer alleged that such goods were what is known as seconds; that under an agreement with the vendor defendants were to purchase all of that class of goods for a specified discount from the catalogue price of firsts; that the vendors were to maintain such price of firsts for one year; that they did not do so, but sold at reduced prices, whereby defendants were prevented from selling the goods purchased by them, to their damage. The only evidence to sustain this defense was that the vendor had sold three invoices of firsts of two kinds out o£ one hundred at a reduced price; neither of which kinds were shown to be among those remaining on defendants’ hands, and the declaration of a customer that he could get firsts at the price defendants asked for seconds. Held, that the evidence was not sufficiently definite to authorize a finding that such sales were the cause of defendants’ failure to sell their goods.
    3. Same.
    The measure of damages is to be determined by the facts testified to on the trial and not by those alleged in the pleadings.
    Appeal by defendants from judgment entered on verdict, and from order denying new trial.
    
      Wales F. Severance, for resp't; William J. Kelly, for app’lts.
   Van Wyck, J.

—The plaintiff by assignment from the Goodyear Yulcanite Go. alleges sale to defendants between June 11 and 27, 1891, of goods at agreed prices of $1,398.94, upon account of which payment of $986.68 has been made, and claims the balance of $412.26. The answer admits such payment and that the goods were so sold, but denies that the agreed price or value was as claimed, and alleges by way of counterclaim that on May 1, 1891, an agreement was made by them and the Goodyear Co. by which it was to sell, and they were to take all of the material manufactured by it for one year and known as “ seconds ” at agreed prices of twenty per cent less than its prices for “ firsts ” as fixed by published catalogue prices and the regular discounts allowed therefrom. These ‘“firsts ” are goods that are entirely perfect in every respect and the “ seconds ” are imperfect or have a blemish of some kind.

The answer further alleges that at the same time it was agreed between the parties that the Goodyear Co. should maintain, for one year, the prices of these “firsts,” as specified in its catalogue, less the said trade discounts, but that in violation 'of this agreement it sold “firsts,” between May 1 and June 30, 1891, at prices much lower than as agreed, as aforesaid, and that by reason thereof defendants were unable to sell and dispose of the “ seconds,” and hence were damaged thereby in the sum of $2,500.

Upon the trial plaintiff proved the sale, the payment and the balance of $412.26 as due, and then rested.

It was conceded that the prices to be paid by defendants for “ seconds ” were to be twenty per cent less than the net prices of the “firsts.” The defendants gave evidence to show that the agreement to maintain the prices of “ firsts ” for one year was made. The only evidence to show that the company had sold “ firsts ” for less than fixed prices was that it sold three invoices of “ firsts,” one May 7, of five gross of fine combs known as No. 315, at $4.50, equals $22.50; another, July 11, of thirty gross of fine combs known as No. 315, at $4.50, equals $135; and another June 8, of twelve gross of dressing combs known as No. 2374, at $8.35, equals $100.20; the aggregate of these three invoices being $257.70. Although denying that these goods were “firsts,” it was conceded by plaintiff that the net prices of goods as so numbered on the catalogue were $5 per gross for No. 315 and $12.20 for No. 2374. Now if these two kinds of goods were “ firsts ” and so sold, then as defendants were to pay twenty per cent less for “ seconds,” they could be .charged only $4.05 per gross for No. 315 “seconds,” and $6.68 per gross for No. 2374 “seconds.”

It was admitted in the case that there are one hundred different kinds of “ firsts ” catalogued and at different prices. The defendants testify that they bought from the company $3,600 worth of these rubber goods, altogether; but they have failed to prove clearly what portion of these goods so bought are of the two kinds known as No. 315 and 2374, which they should have done in order to allow the jury to ascertain how much they had been overcharged for these two kinds, for their proof, assuming its truth, is that they should have been charged $4.05 instead of $4.50 per gross for “seconds" of No. 315, and $6.68 instead of $10.50 for “ seconds ” of No. 2374.

It is true that one of the defendants in answer to a question as to whether they have the same kind of goods mentioned in this invoice (what invoice it is does not clearly appear) says:

“I think so. Here is one of twenty-four gross.” But it does not appear whether these twenty-four gross were of the No. 315 or the No. 2374 kind, and he continues testifying indefinitely as to goods at $64, $23.74 and $18 per gross, but as already stated they paid $4.50 for “ seconds of. No. 315, and $10.50 for “ seconds ” of No. 2374, and say that “ firsts ” of these numbers should have been sold by the company for $5 and $12.20 instead of $4.50 and $8.35 respectively, and he continues in answer to this question : “ Q. Are there any numbers in your invoices of the Goodyear Vulcanite Go., that is, of the number 2374. A. We have some of those numbers; four gross; that is all I have discovered. They cost me $10.50; they were in the other bills $8.35 ; that is, for the first quality. That is all I discover." This ' is all of the testimony from which must be ascertained what, if any, overcharge has been made or paid by defendants. The jury would be justified in finding that there had been an overcharge of $3.82 per gross of four gross of “ seconds” of Ho. 2374, equal to $15.28, and the jury might be justified in finding an overcharge of forty-five cents per gross on twenty-four gross of “ seconds ” of Ho. 315, equal to $10.80. The defendants may have had much information as to overcharges, but their proof was small in result. The defendants claimed that they had on hand about $2,400 worth of rubber goods which they were unable to sell by reason of the cut in prices of the “ firsts,” as already shown, by the company in violation of its agreement to maintain the same for one year. As to this, one of the defendants says that he bought, altogether, about $3,600 worth of rubber goods of- “ seconds;” that he knows their sale was interfered with by reason of this cutting of prices, because he tried to sell several numbers of those goods in June arid July, 1891, and the parties to whom he offered them said: “ I won’t buy 1 seconds ’ because I can buy 1 firsts ’ for the price you want for the 1 seconds,’ and I couldn’t make any sale of them; ” and the other defendant says that be has endeavored to sell the rubber goods which they bought of the Goodyear Co. and now have in' stock, but has not been able to do so for the reason that they had undertaken to sell the second quality for the same price the first quality had been selling for.

This is the evidence on this branch of the case, and no proof is made that any of the rubber goods which defendants had on hand and failed to sell were of the kinds known and catalogued asHos. 315 and 2374. Moreover, defendants say they then knew that the company had sold these two numbers in “ firsts ” for less than the fixed price, and that they had the right to'buy “seconds” for twenty per cent less than the net selling price of “ firsts ” as so fixed. If they had this right to buy at prices so diminished, it certainly carried the privilege to reduce their selling price of “ seconds ” by twenty per cent without in any way diminishing their profits so as to meet any cut on the prices of “firsts.” And when their alleged customer, to whom they offered to sell the goods, said that he could buy “firsts” for the price that they offered “ seconds,” if they had replied that they would then reduce their selling price by twenty per cent, it is reasonable to suppose that this offer would have been accepted. And moreover, whether such customer so said he could buy “ firsts ” at prices for what he was offered “ seconds ” is the merest hearsay evidence, and as he had the whole world as a buying market, so far as the evidence shows, how can his declaration, if made, even if true, have any legal bearing on the measure of damages as between the defendants and the Goodyear Co., for no proof is in the case that it had reduced the prices for “ firsts,” except, perhaps, as to three small invoices of two out óf 100 different kinds. And so it can be safely said that defendants have not made their proof sufficiently definite as regards their inability to sell “ seconds ” by reason of the reduction of “firsts” by the Goodyear Co.to enable either judge or jury to say that the.reason why they have not sold part of their “seconds ” which they bought from the Goodyear Co. is because that company sold these three invoices of those two kinds of “ firsts," assuming that it did, at prices lower than it had agreed to sell. It is said in appellants’ brief that the question is what was the rule of damages applicable to the facts as alleged in the pleadings in the case. This might be the question upon the hearing of a demurrer to such pleading, but at circuit the question is what is the rule of damages applicable to the facts as testified to upon the trial, having regard, however, as to whether the same are properly within the scope of the pleadings.

And applying this rule, nothing can be found in the record which would justify holding that defendants have any just cause of complaint against the verdict of a jury which holds with them in so far as recognizing the making and breach of the contract upon which their counterclaim was founded. And this verdict so determines, for the plaintiff proved his claim of $412.26, except, perhaps, as to the two items of $15.28 and $10.80, amounting to $26.08, which, taken from the full claim, leaves, $386.18 due plaintiff. Yet the verdict is only for $360.76, indicating that the jury concluded that the agreement was made and broken as contended for by defendants, and that some evidence appeared on the trial showing small damages to defendants by reason of the company’s breach of the contract. The verdict is not against the weight of evidence so far as the defendants are concerned.

The judgment and order appealed from are affirmed, with costs.

McGown, J., concurs.  