
    William Wallace and Armitage Wilkinson, Pl’ffs and Resp’ts, v. Frederick D. Blake and Charles Waterman, Def’ts and App’lts.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed February 4, 1889.)
    
    1. Contract—Of sale—Merchantable quality—Warranty.
    The plaintiffs sued for the contract price of 1,000 pounds of woolen yarn manufactured for the defendants on their order, The defendants set up as counter-claim that a previous order of 800 pounds, made for and delivered to the defendants by the plaintiffs and paid for, was so unsound, rotten and unmerchantable that the defendants suffered a loss thereon of $200. Meld, that as there was no collateral warrantee as to the quality, the counter-claim was properly overruled by the trial court.
    '2. Same—Countermand of orders—What not sufficient countermand.
    Where in such suit the defendants set up as defenses that the yarn was unsound, rotten and unmerchantable, and that they had in due time countermanded the order, but it appeared by the evidence that no proof whatever was offered as to the first of the above defenses, and as to the second the evidence offered did not show that the order had been countermanded properly and in due time, the cablegram and letter merely directed the plaintiffs not to ship the yarn; it did not countermand the order or instruct the plaintiffs to discontinue the spinning of the yarn, and they were therefore justified in going on with the work. Meld, that the plaintiffs were entitled to the direction of'a verdict in their favor.
    8. Same—Measure of damages—Choice of remedies.
    The measure of damages in such cases is, when the buyer refuses to receive the goods ordered when tendered, the. seller has the choice of three remedies: (1) To sell the goods on behalf of the purchaser, and recover the difference between the contract price and that realized upon the sale; (2) 4o retain the thing as his own, and receive the difference between the contract price and the market price at the time and place for delivery; (3) to hold the property for the purchaser and recover of him the entire purchase money.
    •4. Same—Damages—What cannot be recovered as—Costs of shipment.
    The plaintiffs having shipped the goods to the defendants,although directedbythe defendants not to do so, and thereby having imposed upon the defendants a burden which they had no right to do: Held, that the law will not. allow even a delinquent party to he needlessly exposed to loss greater than, actually results from the breach, and that, therefore, the plaintiffs were-not entitled to recover for the packing and shipping expenses incident upon, the'alleged delivery, and that the judgment should he.reversed, unless plaintiffs consent to reduce the judgment by deducting those expenses.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment entered on a verdict directed by the judge at a trial term. The facts are sufficiently stated in the opinion.
    
      W. C. Beecher, for app’lts; Carlisle Norwood, Jr., for resp’ts.
    
      
       See 18 N T. State Rep., 922.
    
   Bookstaver, J.

—The action was' brought to recover the-price of one thousand pounds of yarn, manufactured and. claimed to be sold and delivered by plaintiffs to defendants. The plaintiffs are manufacturers of woolen yarn, under the-firm name of Wallace & Co., near Bradford, England. The defendants composed a firm of F. * D. Blake & Co., carrying on business in the city of New York. On the-22d June, 1886, the defendant ordered of the plaintiffs 500 pounds of a kind of yam known in the market as Number 260, to be shipped as soon as possible. On the 30th of June, in the same year, the defendants ordered 1,000 pounds more of the same yam to be manufactured and shipped, 500 pounds as soon as possible, and- 500 pounds two weeks later. On the 8th of July, in the same year, defendant by telegram, directed the plaintiffs to “await further cable before shiping last 1,000 pounds ordered,” and on the same day wrote them, the reason therefor was that similar yarns from other parties had proved unsatisfactory, and they wished to test the 500 pounds first ordered before the second order was carried out. To this, plaintiffs replied by letter, on July 8th, saying that they had nearly finished the yarn upon the receipt of the cable, and that it would probably be ready for shipment within a week or so, and intimated that they would not cancel the order. On the 29th of July, defendants wrote plaintiffs in substance, claiming that their cablegram and letter of July 8th, was a cancellation, and notifying pláintiffs that they would not hold themselves bound by their order of Juné 30th, and in effect again notifying plaintiffs not to ship the goods. In disregard of these orders, the plaintiffs in a few days, and without any fifrther ■ orders or directions from the defendants, shipped the goods, by a. common carrier to this port. The defendants refused to receive them, and re-shipped them to the plaintiffs. Thereupon plaintiffs commenced this action to recover the-contract price. In their complaint, they alleged a course of.' dealing with the defendants, whereby they claim the delivcry was complete when the goods were delivered to a common carrier at Liverpool, and the invoices and proper papers were mailed to the defendants. The answer admitted the order for the 1,000 pounds of yarn, but denied that it was ever delivered or accepted by the defendants and alleged that the yarn was unsound, unmerchantable and unfit for use; and also that they had notified the plaintiffs to stop spinning the yarn, and not to ship it to them; and set up as a counter-claim that the first 500-pounds of yarn ordered was unsound, rotten and unmerchantable, and claimed damages by reason thereof, the sum of $200. On the trial, it appeared that the first 500 pounds ordered and referred to in the counter-claim, had not been examined by the defendant, but that they had, without examination, sold and delivered the same to other-parties, thereby putting it out of their power to return the same to the plaintiffs, even if unmerchantable. The contract being executory and no collateral warrantee or agreement as to quality appearing, the court below very properly overruled the counter-claim. Coplay Iron Co. v. Pope, 108 N. Y., 252; 13 N. Y. State Rep., 480; Norton v. Dreyfuss, 106 N.Y.., 90; 8 N. Y. State Rep., 570. As to the 1,000' pounds sued on, the evidence showed the plaintiffs had fully performed everything to be done on their part, and were entitled to judgment unless the defendants established one of the two defenses set up in their answer, by proving that the yarn was unsound and unmerchantable, or that they had "properly and in due time countermanded the order.

As to the first of these defenses, no proof whatever was ordered concerning the character of the yarn, either when shipped or when returned by the defendants. They did not examine it. On the trial they gave some proof as to the-character of the 500 pounds first ordered. But even this evidence left it uncertain whether the defect was an inherent infirmity in the yarn when delivered, or whether it arose from the subsequent treatment of it, and was not of itself sufficient to warrant the submission to the jury of the question of. the soundness or unsoundness of the yarn manufactured under a subsequent and independent order. The evidence offered did not establish the defense that the second order had been countermanded properly and in due time; the cable and letter of July 8th merely directed the plaintiffs not to ship the yarns, it did not countermand the order; nor did it instruct the plaintiffs to discontinue the spinning of the yarn. They were, therefore, justified in going on with the work, and looking to the defendants for their compensation.

It thus appears that the plaintiffs, when the testimony was closed, were entitled to the direction of a verdict in. their favor, and the only question remaining is whether the verdict was directed for the proper amount. In other words, what is the rule of damages in such cases. It has been broadly stated that when the buyer refuses to receive the goods ordered when tendered, the seller is given the choice between three remedies:

First. To sell the goods on behalf of the purchaser and recover the difference between the contract price and that realized upon the sale; second, to retain the thing as bis own, and recover the difference between the contract price and the market price at the time and place of delivery; and, third, to hold the property for the purchaser and recover of him the entire purchase money. Schuyler on Per. Prop., § 522; Dustan v. McAndrew, 44 N. Y., 72; Hayden v. Demets, 53 id., 426; Hunter v. Wetsell, 84 id., 549; Bigelow v. Legg, 102 id., 652; 1 N. Y. State Rep., 158.

In the case under consideration the defendants had repeatedly ordered the plaintiffs not to ship the goods. It was not necessary for them to do so in order to entitle them to recover. Lawrence v. Miller, 86 N. Y., 132.

This they did, however, and thereby imposed upon the defendant a burden which they had no right to do, for the law will not allow even a delinquent party to a contract to be recklessly or needlessly exposed by the other to a loss greater than actually results from its breach. The plaintiffs, therefore, should have been allowed to recover for the contract price of the goods, but not for the packing and shipping expenses incident upon the alleged delivery. The case presented shows that these expenses amounted to $6.68; the amount incurred for freight which should be borne by the plaintiffs, was not included in the verdict directed.

It follows, therefore, that the judgment should be reversed, unless plaintiffs consent to reduce the judgment by deducting therefrom $6.68, with interest thereon. If this is done, the judgment should be affirmed without costs of this appeal to either party.

Larremore, Oh. J., and Allen, J.. concur. .  