
    Henry Y. Middleworth, Respondent, v. Woodbury Lowery, Appellant.
    
      Breach of contract for the sale of land—resulting inability of the vendee to .perform a contract, for the sale of the land, with a third person—proof as to damage» limited thereby—proof of the market price of the land — objection thereto, not waived by calling witnesses to contradict it — effect of the vendee not proving the contract with the third, person.
    
    In an action brought by the vendee in a contract for the sale of real estate to recover damages for the breach of the contract, the plaintiff claimed that, at or about the timé the said contract was entered into, he made an agreement, “ a copy of which said agreement is hereunto annexed marked ‘ B ’ and made a. part of this complaint,” with a crematory company for the purchase of the premises in question.
    The complaint further alleged “that by reason of the defendant’s refusal to convey the said premises to plaintiff, as aforesaid, plaintiff was unable to fulfill or perform on his part the agreement with the said Crematory Company, referred to in Paragraph VI, hereof, which agreement the said Crematory Company was ready, able and willing to perform on its part at the time and place mentioned in said agreement, and that plaintiff thereby lost the benefit and goodness of his said several bargains with defendant, and with said Crematory • Company, to his damage Forty-five hundred dollars ($4,500). Wherefore, plaintiff demands judgment against said defendant for the sum of five thousand dollars, with interest on forty-five hundred dollars thereof from March 11th, 1901,, besides the costs and disbursements of this action.”
    The $5,000 finally prayed for represented the $4,500 damages which he claimed' to have lost on account of his inability to convey to the crematory company,, and $500 which he alleged that he paid to the defendant on account.
    
      Held, that under the complaint the plaintiff Was only entitled to recover the-damages resulting from his inability to perform his contract with the crematory company and was not entitled to recover general damages;
    That, consequently, it was error to permit the plaintiff to prove the market price of the premises;
    That, the defendant, did not waive his objection to the admission of this evidence by calling experts to contradict the evidence given by the plaintiff upon the subject of value;
    That the fact that the contract between the plaintiff and the crematory company was not proved nor read in evidence and was not the subject of any evidence' did not render the objection to the introduction of evidence upon the subject of value unavailable to the defendant.
    Appeal by the defendant, Woodbury Lowery, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 10th day of December* 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1902, denying the defendant’s, motion for a new trial made upon the minutes.
    
      Frank F. Blackwell, for the appellant.
    
      William, H. Cochran, for the respondent.
   Jenks, J.:

This is an action for breach of contract for the conveyance of realty. The plaintiff complains that at or about the time the contract was entered into, he had made an agreement in writing with a crematory company for its purchase of the premises for $16,000, “a copy of which said agreement is hereunto annexed, marked ‘ B,’ and made a part of this complaint.” The 7th allegation of the complaini is as follows: “ That by reason of the defendant’s refusal to convey the said premises to plaintiff, as aforesaid, plaintiff was unable to» fulfill or perform on his part the agreement with the said Crematory Company, referred to in Paragraph YI, hereof, which agreement the:said Crematory Company was ready, able and willing to perform on' its part at the time and place mentioned in said agreement, and that plaintiff thereby lost the benefit and goodness of his said several bargains with defendant, and with said Crematory Company, to his damage Forty-five hundred dollars ($4,500). Wherefore, plaintiff demands judgment against said defendant for the sum of five thousand dollars, with interest on forty-five hundred dollars thereof from March 11th, 1901, besides the costs and disbursements of this action.”

I think that the fair construction of the pleadings is that the plaintiff prayed to recover only the damages arising from his inability to perform his contract with the crematory company.- This id evident from the language “and that plaintiff thereby lost the benefit and goodness of his said several bargains with defendant, and with said Crematory Company, to his damage ” $4,500. This sum represents the difference between the contract price agreed upon by the plaintiff and the crematory company. The $5,000 finally prayed for represents that difference plus the $500 which the plaintiff alleges was paid on account to the defendant. It is not necessary to consider that part of the claim upon the present appeal.

The plaintiff called Mr. Johnson as an expert, and asked him ■whether he knew the value of the property in suit. Objection was made as there was no allegation of general damage in the case. This" was overruled under exception. The witness was then asked: “ What was the value of that plot on or about the 25tli day of February, 1901 ? ” This was objected to on the ground that no allegation of general damage or damage of any kind has been made in the complaint; that this question does not relate "to the allegation of special damage, and special damage is insufficiently alleged in the complaint.” The learned court ruled: “ It will not be received as proof of special damage. But I will receive it otherwise.” Exception wás thén talc,en. I think that this ruling was erroneous. If the plaintiff, by his pleading, was confined to the damages flowing out of the difference between his contract price with the defendant and his contract price with the crematory company, the market price of the realty was neither relevant nor material. I think that he thus limited his possible recovery in that action. (Joyce Dam. § 1294, and authorities cited; Suth. Dam. [2d ed.] § 417.) The fact that the defendant afterwards called experts to contradict the witness as to the value was not a waiver of his objection to the evidence. (Martin v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 626.)

The learned counsel for the respondent insists that this point is not available inasmuch as the contract referred" to was not read in evidence nor proved, and was not the subject of any evidence. But the contract was pleaded and "the claim for damages was expressly and exclusively based upon its existence. The defendant had the right to limit the proof of damages to those pleaded. If the plaiiitiff chose to abandon his pleading, that cannot defeat the right of the defendant to hold him to it. So long as the defendant took his specific objection and stood upon it, he cannot be said to have" elected with the plaintiff to depart from the issues or to have waived his objection because he did not strive against the drift of the trial that followed after the ruling of the learned court.

The judgment and order should be reversed and a new trial granted, costs to abide the final award of costs.

Goodrich, P. J., Woodward, IIirschberg and Hooker, JJ., concurred.

judgment and order reversed and new trial granted, costs to abide the final award of costs.  