207 A.D. 411 | N.Y. App. Div. | 1923
It is a doctrine of the law, so firmly established that it would be useless now to question it, that mere uncertainty of the amount of damage does not prevent its award, if a breach of an agreement has brought about a loss. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Delafield v. Armsby Co., 131 App. Div. 582.) Hence, where both breach and some ascertainable damage is found, the law’s ideal of redress for injury ought to be sought within a proper adherence to fundamental legal principles.
The contract here was to deliver fifty mahogany pianos at the rate of two or more a week at specified prices for two different grades known as “ Standard ” and “ Auto de Luxe.” After five pianos had been delivered and paid for under the contract terms,
The exceptions are stated by Mr. Justice McLaughlin in Atlas Portland Cement Co. v. Hopper (116 App. Div. 445, 449) as follows: “ * * * This rule, however, is subject to exceptions when special damages may be recovered: (1) Where the article purchased is of a peculiar make or for a particular purpose, having either no market value or a value much greater to the purchaser than to the public generally; and (2) where the contract unfulfilled was to deliver goods which the seller knows are the subject of an agreement by his purchaser under the terms of which the latter must deliver these goods, for which he is to obtain an advance price. * * * ”
The evidence which tended to prove that there was no market for pianos of this type and grade, and that they were of a peculiar make, was such as warranted, if it were believed, these findings by the jury: That the plaintiff had been buying similar pianos from the defendant for over a year, and had- built up a reputation among his customers because of their quality; that there was a difference in quality between defendant’s pianos and others, the defendant’s being of a higher quality; that plaintiff’s customers would notice the difference between defendant’s pianos and those of other makers; that the plaintiff, after repeatedly urging the defendant to carry out its contract, went to other dealers in an effort to buy pianos, and found that there were none on the market; that plaintiff then went to the defendant and asked where he could buy pianos of the same quality as the defendant’s, and was told that it knew of no place where he could buy them; that the defendant’s officer at that time told the plaintiff that it was not carrying out the. contract, because it could make more money by selling its pianos at retail.
It is true that there is testimony to the effect that the pianos
The foregoing résumé of the proof as it stood when the complaint was dismissed, we believe, brings the plaintiff’s cause within the exception to the common rule which allows proof, other than difference between contract and market price, where there is not a market for the particular commodity, and gives plaintiff the right to recover for the loss of profits which would have accrued to him had the contract been carried out by defendant. (Ehrenworth v. Stuhner & Co., 229 N. Y. 210; Delafield v. Armsby Co., supra.)
There was a jury question here as to what damages plaintiff suffered because of defendant’s breach of its contract, and it was error to dismiss.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Finch and Martin, JJ., concur; Dowling, J., dissents.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.