
    Smith et al v. The Sloss Marblehead Lime Company.
    
      Breach oj contract — Action to recover — Measure of damages — Rule as to averment or evidence of injury.
    
    In an action to recover for the breach of a contract to deliver stone, the difference between the contract price and the market price at the time and place of delivery required by the contract may be recovered without averment or evidence of special injury resulting from the breach.
    (Decided Febuary 1, 1898.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error brought suit in the court of common pleas against the Lime Company upon the following original petition filed April 20, 1893:
    “Plaintiffs, complaining of the defendant, The Sloss Marblehead Lime Company, say, that it is a corporation duly organized and existing’ under and by virtue of the laws of the state of Ohio, and as such was engaged in quarrying, manufacture and sale of stone; that on or about March 1, 1893, the defendant agreed with the plaintiffs to furnish and provide the plaintiffs with five thousand cords of pier' stone, so-called, and did then and there sell the plaintiffs said five thousand cords of stone to be delivered during the year 1893, at defendant’s dock at Marblehead, f. o. b. vessel, at the rate and price of one dollar and seventy-five cents ($1.75) a cord, but disregarding its promise and agreement in that behalf, the defendant, although requestéd by the plaintiffs, wholly refuses and declines to fulfill and perform its agreement aforesaid.
    That the plaintiffs are under contract and agreement with the government of the United States to build and construct for it a pier in the harbor of the city of Cleveland, Ohio, and are compelled in the performance of said contract to use stone in amount to five thousand cords, and by reason of the failure and refusal of the defendant to perform its contract and agreement, as aforesaid, plaintiffs have been compelled to contract for and purchase stone elsewhere; that they have been unable to purchase stone of the kind and character which they purchased of defendant at a price less than two dollars and seventy-five cents ($2.75) a cord, and that the defendant by its failure and refusal to perform the contract and agreement aforesaid, so made and entered into with the plaintiffs, has caused the plaintiffs to expend the sum of five thous- and ($5,000) dollars, over and above the price agreed upon between the parties hereto, to the damage of plaintiffs five thousand ($5,000) dollars for which amount the plaintiffs pray judgment against the defendant.”
    June 5, 1893, the Lime Company filed the following answer:
    “Now comes the defendant, The Sloss Marble-head Lime Company, and for answer to the plaintiff’s petition admits that it is a corporation existing under the laws of said state, and as such was engaged in the quarrying, manufacture and sale of stone, but as to each and every of the remaining allegations of said petition it says that the same are not true, wherefore it denies said allegations and each of them.”
    March 6, 1895, the plaintiffs filed the following supplemental petition:
    “Now come the plaintiffs and by way of supplemental petition say, that since the 19th day of April, 1893, by reason of the failure and refusal of the defendant to perform its contract and agreement to deliver stone as alleged in the. petition, they, the said plaintiffs, have received and paid for under the contract which they were compelled to make for the purchase of stone elsewhere alleged in the petition, the amount of four thousand five hundred eighty-four and 12-100 cords of pier stone at and for the price of two and 75-100 ($2.75) dollars per cord.
    And plaintiffs say, that by reason of the failure of the defendant to deliver the said pier stone in accordance with said agreement of the defendants to deliver, and of the plaintiffs to receive the same, at and for the price of one and 75-100 ($1.75) dollars per cord, they have been compelled to, and have bought the said four thousand five hundred eighty-four and 12-100 cords of pier stone, and have paid therefor the sum of twelve thousand, six hundred six and 33-100 ($12,606.33) dollars; and plaintiffs say that said price of two and 75-100 ($2.75) dollars per cord was the lowest market price at which they could obtain said stone after the refusal and failure of the defendants to perform their said contract to furnish stone as-alleged in the petition. Wherefore plaintiffs pray judgment against the defendants in the sum of $4,584.12, with interest thereon from the first day of July,. A. D. 1893.”
    And on the said 6th day of March, 1895, the Lime Company answered said supplemental petition as follows:
    “Defendant for answer to the supplemental petition, filed herein, says it denies each and every allegation therein contained.”
    March 8, 1895, the cause was tried to a jury, the trial resulting in a verdict in favor of the plaintiffs for $4,584.12 Within three days a motion for a new trial was filed by defendant upon the grounds, among others, that the court erred in its charge to the jury and that the verdict was contrary to the evidence. This motion was overruled, and a judgment followed the verdict. A bill of exceptions was taken containing all the evidence offered upon the trial, and a petition in error was filed in the circuit court, one of the assignments of error being’ that the common pleas court erred in overruling’ the motion for a new trial.
    The circuit court reversed the judgment and remanded the cause to the court of common pleas for a new trial for the reason as shown by its journal entry, “that inasmuch as the evidence did not show that plaintiffs in error knew when said contract was made that the defendant had a contract with the United States government under which the stone was to be used, the rule of damages given to the jury under which they could give special damages, was error, and this cause is remanded to said court of common pleas for a new trial.”
    
      Goulder & Holding, for plaintiffs in error.
    
      J. E. Ingersoll and S. H. Tolles, for defendant in error.
   Shauck, J.

The record does not justify the assumption that the defendant did not know, when the contract was made, that the plaintiffs had u contract with the government under which the stone was to be used. There was clear and direct testimony that the plaintiffs were making the purchase for the erection of a pier under a contract with the government and that the amount of stone to be delivered under the contract of purchase was to be determined by the requirement of the contract with the government. Knowledge of this fact is implied in the conversations which formed the contract. Indeed, the evidence shows that the negotiations which led to the contract were introduced by a representative of the Lime Company who was prompted by knowledge that the government had awarded to the plaintiffs the contract for the construction of the pier.

Moreover, no instruction was given to the jury which would authorize the assessment of special damages. The instruction in this regard was:

“The damages the plaintiffs are entitled to recover, if you find in their favor, is the difference between what they were to pay, to-wit, $1.75 per cord, and the market value or what they could go into the market and buy the same stone — substantially the same stone, at that time and place, for. The difference between what the market price was and what they had agreed to pay would be the measure of damages, and that amount the plaintiffs should have in your verdict, if you find for the plaintiffs.”

No other measure of damages was defined by the court to the jury, nor did the jury award damages in excess of the difference between the contract price and the market price as they were shown by the evidence offered by the plaintiffs.

The damages defined in the charge and awarded by the jury are general, because they are such as are presumed in law to have accrued from the breach of the. contract. They would have accrued if the' stone had been purchased for use in another place or to be resold. They are not special, because they do not, to any extent depend upon the terms of the purchaser’s contract with the government. They compensated the purchasers for no detriment sustained in consequence of stipulations in their contract with the government, nor reimbursed them for any lost advantage offered by the terms of that contract. Sedgwick on Damages, section 1261, Sutherland on Damages, sections 419-20.

It seems clear, therefore, that the judgment of the circuit court cannot be sustained upon the ground stated in its entry. But counsel for the defendant contend that the judgment of reversal entered by the circuit court should be affirmed because the petition upon which the recovery was had in the common pleas does not state a cause of action, although that was not stated as a ground of reversal in the circuit court. It is important to observe, in this connection, that no motion was filed to require the allegations of the petition to be made more definite and certain. Nor was its sufficiency tested by demurrer. The trial was had upon the issues joined on the allegations of the original petition and the supplement thereto. Taken together the allegations set up a contract executed March 1, 1893, for stone to be delivered during the year 1893, and not performed by March, 1895. The evidence showed without contradiction that before the suit was brought the Lime Company had sold its quarries and thus disabled itself to perform the contract with the plaintiffs if it had entered into the contract alleged. Whether it had entered into such contract or not was the subject of real contention upon the trial. The finding that the contract alleged in the petition was entered into does not seem to be affected by any error, and the defendant’s repudiation of the contract and rendering itself unable to perform constitute a sufficient breach.

Jxidgment of the circuit court reversed and that of the common pleas affirmed.  