
    CONGRESS PETROLEUM CORPORATION, A CORPORATION, PLAINTIFF-APPELLEE, v. AMERICAN GROCERY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.
    Argued May 18, 1933
    Decided October 16, 1933.
    Por the defendant-appellant, Reuben P. Goldstein and Maurice G. Brigadier.
    
    Por the plaintiff-appellee, Orlando H. Dey.
    
   The opinion of the court was delivered by

Bodine, J.

The present action was brought to recover damages for breach of a contract to make free distribution of four hundred dozen cans of Vítalo in one dozen lots free of charge to each of four hundred stores through which defendant marketed its product. The case was tried at the Circuit without a jury, on the theory that there were but two issues raised: (1) was the agreement breached; (2) what was the reasonable value of the articles delivered to the defendant?

The proofs showed that the defendant had made sale of four dozen half pint cans of Vítalo, and had offered the same for sale in its merchandise lists. No other half pint cans of Vítalo had been sold to it.. The reasonable value of the goods delivered for distribution was the sum of $1,100 and for this amount judgment was entered.

The action was tried on the theory of contract and since there was no demand for the return of the goods it could not be otherwise treated. The proofs show a mere failure to make free distribution of four dozen cans of Vitalo. The plaintiff was obliged to prove damages for the non-performance of the contract. Undoubtedly the failure to make free distribution of four dozen cans entitled the plaintiff to a recovery, but certainly not to the reasonable value of the four hundred dozen cans, some part of which may have been distributed in accordance with the contract.

The judgment is reversed to the end that there may be a venire de novo.

For affirmance — -Van Busicirk, Hetfield, Dill, JJ. 3.

For reversal — The Chancellor, Chief Justice, Trenchard, Parker, Case, Bodine, Donges, Heher, Perskie, Kays, Dear, Wells, JJ. 12.  