
    Francis O. Boyd et al., Respondents, v. L. H. Quinn Co., Appellant.
    (Supreme Court, Appellate Term,
    October, 1896.)
    1. Sale — Executory—Measure of damages;
    Where a vendor refuses- to deliver goods sold upon an executory contract, the general rule is that the vendee is entitled to recover, as damages the difference in the price on the day fixed by the contract for delivery, and this principle is based upon the assumption that the vendee, immediately upon the breach, can buy other goods of a similar quantity and quality. Where, however, the goods are to be delivered to a carrier in another State, and knowledge that the goods were not delivered as agreed, was not transmitted to the vendee until several days later, he is entitled to recover damages as of the date when he first learned of the failure to deliver.
    2. Agency — Disclosed principal.
    Where a contract of sale reads, “ Bought of L. H, Quinn Company,” without any reference to an agency for any other party, and where, in the correspondence relating to the sale, there is no suggestion of any other agency, the vendor, upon a failure to deliver, furnishes no defense by showing that a Mr. Quinn, who was a member of the L. H. Quinn Company, was the agent for the receiver of another company which, in fact, manufactured the goods, and that the vendees knew the fact.
    Boyd v. L. H. Quinn Co., 17 Mise. Rep. 278, affirmed.
    
      Appeal by the defendant from a judgment in plaintiffs favor, entered upon the verdict of the jury for $546.25 damages, for the nondelivery of four carloads of high-proof spirits and alcohol purchased by the firm of Ross & Keany, plaintiff’s assignors, from the defendant, and which the defendant failed to deliver.
    David Willcox and Opdyke, Willcox & Bristow, for appellant.
    Albert B. Boardman, Malcom Graham & Tracy, Boardman & Platt, for respondents.
   Daly, P. J.

The principal question involved in, this appeal is whether the judgment is based upon the Correct rule of damages. The contract, which was made on April 26, 1895, was for the purchase of three carloads, or 17,550 gallons, of high-proof spirits, at $1.20£ per proof gallon; and one carload, or 5,750 gallons, of alcohol, at $1.20-1,- per proof gallon, free on board, at Peoria; shipment to be made Monday, Tuesday, Wednesday and Thursday of the week ending May 4, 1895;'and payment to be made on sight draft against documents. -The contract was made in Rew York, where the parties resided. Kot hearing from the goods, the purchasers, Ross & Keany, on May 8th or 9th wrote to the defendant, inquiring the cause of the delay, and on May 16th, received a letter refusing to make the delivery. The question is whether the plaintiffs were entitled as damages to the difference between the contract price of the goods and their market value at Peoria on the date or dates of delivery, or such difference on the day when they first had. notice of the refusal to deliver.

The general rule that the damage recoverable is the difference on the day fixed by the contract for delivery, is based upon the assumption that immediately upon the breach, the purchaser can go into the market and buy other goods of a similar quality and quantity. But this rule obviously rests upon -the assumption that the purchaser has knowledge at that time of the breach; and in the great . majority of cases such is the fact, because delivery is usually made to him or to some agent who has such knowledge of the facts, that the breach would be chargeable to him. But the present case is exceptional in this, that while the contract names Peoria, and certain dates in May as the place and time of delivery, it does not appear that the purchasers had any knowledge or means of Knowing on that date that a breach -had occurred or was contemplated. It would not be reasonable to require them to anticipate a breach and to make provisions in advance for ascertaining whether goods were or were not placed, upon the cars at the time mentioned in the contract. Even had they done so it is possible they would not have acquired knowledge of any breach, because Mr. Quinn, on behalf of the defendant, testified that he had ordered the goods shipped, but had not notified the purchasers that they were not going to receive them, until May 10th. It appears that the bills of lading would not have been sent to the purchaser directly, even had the goods been shipped, as payment was to be made when they were presented.

The purchasers did use diligence in seeking to learn the cause of the delay, when put upon inquiry by the nonarrival of the bills of lading in expected time, for on the 8th or 9th of May they wrote to the defendant, and prior to that time one of them had inquired of the defendant’s office o-ver the telephone, concerning the delivery, and had been told that Mr. Quinn would have to be seen about the matter. Under such circumstances it would be manifestly unfair to offer the purchasers the difference of market price at the time of delivery in Peoria, upon the ground that at that date they were bound to secure themselves by purchasing other goods in place of those not delivered. And under the facts of this case it must be held that the damage recoverable is the difference between the contract price and the market price, on the date when the purchasers Avere definitely informed that delivery would not be made.. The damage allowed was based upon the market price of the goods at the place of delivery (Peoria), on the 10th of May, and I find no ground for the discussion on this appeal of any question as to the market value in New York. By a stipulation in the case, the market value at Peoria on May 10th, the earliest date at which the purchasers had notice of nondelivery, was $1.23 per gallon for high-proof spirits, and $1.22 for alcohol, and the difference between these prices and $1.20i per gallon named in the contract, gives by computation the exact amount of the verdict.

Another question arising upon this appeal is upon the claim of the defendant, that in making this contract it was acting merely as agent fór a disclosed principal by whom the goods were manufactured, The Distilling & Cattle Feeding Company. Mr. Quinn testified for defendant that at the times involved in this section, he was agent for the receiver of the Distilling & Cattle Feeding Company in the eastern territory; and that his exclusive business was disposing of the Distilling & Cattle Feeding Company’s products in the way of spirits and alcohol. The judge refused to charge the jury that if the purchasers bought the goods with knowledge that /the defendant company was acting in the premises as agent for the receiver of the Distilling & Cattle Feeding, Company, the defendant should have a verdict. This was not error.

The contract for the sale of these goods was made by the L. H. •Quinn Company, and not by Mr. Quinn individually. ' There was no evidence that the company was acting as agent. There is a difference between an agency in Mr. Quinn and in his company. From the whole testimony in the case it is manifest that this de^ fendant was selling the goods on its own responsibility and not as agent. Not only does the contract, read: “ Bought of the L. H. Quinn Company,” without any reference whatever to an agency for any party, but in the letter of the defendant repudiating the contract, and refusing'to deliver the goods, there is no suggestion it had been acting except on its own responsibility. There is nothing inconsistent with Mr. Quinn’s being individually the agent of the receiver for the sale of the products of the Distilling & Cattle Feeding Company, and a contract by his own corporation, the L. H. Quinn Company, for the sale of such goods as principal.

The alleged error in sustaining an objection to the question: “You knew he was acting as agent for the Distilling & Cattle Feeding Company? ” was cured by a subsequent answer of the witness, admitting such knowledge.

The defendant’s request for the instruction above referred to was based upon an admission by the plaintiff’s assignor, Boss, when under cross-examination, that he “ knew that L. H. Quinn & Company were the recognized agents here, of the Distilling & Cattle Feeding Company.” This admission would be proof of the fact of agency> if the defendant had been content to rely upon it; but instead of doing so it called L. H. Quinn and proved by him that he was the agent of the Distilling & Cattle Feeding Company, thus disproving its own allegation in the answer, disproving any presumption arising from the admission of Boss and' making such admission immaterial, since he could not know what was not a fact. The request, based upon admission of such knowledge, was, therefore, properly denied.

The judgment should be affirmed, with costs.

McAdam and Bischobt, JJ., concur.

Judgment affirmed, with costs.  