101 N.Y.S. 948 | N.Y. App. Div. | 1906
Lead Opinion
This case came before the court upon a. stipulation consolidating two actions — one brought by the plaintiff, a foreign corporation, against a firm known as.Hoagland &' Eobinson, to recover- the purchase price of cement sold and delivered, -and the other by Hénry ■ P. Eobinson, as the assignee of that firaq against the Atlas Cement Company, another foreign corporation, to recover damages for the alleged breach of a contract in failing to deliver cement according to its terms.
. The plaintiff, according to the stipulation, has succeeded to all the rights and liabilities of the Atlas Cement Company, and the defend-, ant has become subrogated to all the rights of the firm of Hoagland & Eobinson and Henry P. Eobinson, its assignee, the purpose of the stipulation evidently being to have the questions raised in both -' actions settled and determined by, one trial. •
'There was-no dispute between the parties at the trial as to the amount which the plaintiff was entitled to recover for cement sold and delivered, the question litigated being the amount of dam
The facts, so far as material, are as follows: In the spring of 1899 the defendant had a contraç~t to erect a power ~iouse at and he placed an order for 25,000 barrels of c~ment at ~2.25 per barrels to be used in this work, with his own firm, Hoagland & Robinson, composed of himself s~nd Henry P. P~obinson. Some time prior to April 24, 1899, Robinson, the defendant's partner and the manager of his firm, had a conversation with one De Sotolongo, a representative of . the cement company, in which Robinson stated that the firm of Hoagland & Robinsbn had a contract with Hopper to furnish him, at Kingsbridge, 20,000 barrels of cement. On April 24, i~899, an officer of the cement company wrote Hoagland & Robinso~n, referring to the conversation which De Sotolongo had had with Robinson, and offering to deliver 20,000 barrels of Atlas cement at l~ingsbridge in 500 to 1,000 lots, at ~1.82 per barrel, which offer Hoagland & Robiflson a few days later accepted. Under the contract thus made deliveries were made June sixth and twentieth, July fifteenth and thirty-first, and October twenty-sixth, amounting in all to 2,200 barrels,~ and the cement then delivered was paid for,~ but in each instance the payment was delayed until after the sixty days' credit mentioned in each invoice had expired. Further deliveries amounting in all to i,100 barrels were made November fourth, eighth and tenth, making in all 3,300 barrels delivered under the contract. These latter deliveries, however, were not paid for, and plaintiff's recovery was for these shipments
Another fact deserving of consideration, which distinguishes--the case from those- allowing contract profits, is the fact -that -the defendant ordered 25^000 barrels of cement from his firm -while the firm contracted with -tlie-cement company for only 20,000 barrels, showing that dependence was .not placed upon the cement company alone for all of the cement required. ■ " ■
. In Booth v. Spuyten Duyvil Rolling Mill Co. (supra), upon - ..which much reliance is placed by the respondent,.if "was held that one was liable on Ms breach óf a contract of sale for the difference-, between -the sub-contract price and the principal contract price, where - he knew the terms of the subcontract, and the-fact -that he did not- know the sub-contract price did not prevent a recovery,'but it was distinctly stated this was because the article,involved did not have a market'value and the intimation, is clearly made- that if -the article had a market price, although a sub-contract was.contemplated, in that case the general rule would be applicable.
It follows for the reasons given that the judgment appealed from must be reversed and a new trial ordered before another referee, with costs to appellant to abide event.
Patterson, P. J., Clarke and Hotjghton, JJ., concurred.
Concurrence Opinion
I concur with'Mr. Justice McLaughlin. I think the proper measure of damages in this case was the difference between the contract price and the price at which the defendant’s assignor could have purchased 'this cement or other cement of equal quality in the market at the time of the breach. There is evidence that this particular kind of cement was only manufactured by the plaintiff and could only bé obtained from it, and that the plaintiff had refused to deliver any more cement to the defendant’s assignor. It was then the duty of the defendant’s assignor to procure cement of the same brand in the market, and, if that was impossible, to procure cement
• Judgment'reversed, new trial ordered before another referee, costs to appellant to abide event. Order filed.