
    THE NEW YORK SMELTING & REFINING Co., Appellant, v. GEORGE LIEB, Respondent.
    
      Contract to manufacture machine—breach of—measure of damages.
    
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 5, 1881.
    Appeal by plaintiff from judgment entered upon verdict.
    The plaintiff brought the action for damages for breach of contract by defendant. The important part of the contract made by defendant was, “I agree to build for the New York Smelting & Refining Company, a machine for casting metals in bar, 13 inches long, g of an inch wide, J of an inch thick, with a cooling apparatus ; also one mould and model of machine; and I further agree to have ready and deliver same within two months.” The breach alleged was the non-delivery, the allegation being that the machine which was made did not satisfy the contract as to fitness for casting metals in bar. The answer denied the alleged breach and counter-claimed for extra work. Verdict was for defendant.
   The court at General Term said:

“The contract implied an obligation on the part of the defendant to make a machine that should be fit to a reasonable degree, to cast metal into bars (Charlotte, Columbia & Augusta R. R. Co. v. Jessup, 44 How. Pr. 447). Under the facts of this case, it was a question for the jury, whether the machine that the defendant made, satisfied his obligation in this respect. Taking the whole charge together, it did not submit this question to the jury; and for that reason, I am of opinion there should be a new trial . . . .”

Leopold Wallach, for appellant.

Walsh & Eckerson, for respondent.

“ I am of opinion that the plaintiff was not entitled to recover ; if he had proved a breach of the contract, any gains or profits that he might have made, by reason of the machine, casting metal, faster than it was cast, by previous processes. Whether there would have been any gains would be a matter of speculation and guess.”

Opinion by Sedgwick, Ch. J.; Freedman, J., concurred.

Judgment reversed, with costs of appeal to appellant to abide event, and a new trial is ordered. Order denying motion for new trial, made upon the minutes, reversed, with $10 costs to appellant to abide event.  