84 N.Y.S. 385 | N.Y. App. Div. | 1903
The action is brought to recover damages for a breach of contract. On the 14th day of February, 1894, the plaintiff, a Kentucky corporation, and the defendants as copartners, entered into a contract in writing by which the plaintiff gave to the defendants the exclusive agency to sell the plaintiff’s goods, known as Belle of Bourbon whisky, in the city of New York and other specified territory for the period of five years from that date, and the defendants accepted the agency: It was stipulated in the contract, among other things, that the whisky should be delivered to the defendants in the city of New York at eight dollars per case, free of freight on four months’ credit; that the .plaintiff was to sell and the defendants to purchase at least 1,200 cases per annum and, at the option of the defendants, a larger quantity, but that the defend
- Plaintiff blends but does not distill whiskies. . It was not shown, otherwise than by these allegations of the complaint, whether these whiskies were, blended, shipped and tendered to the defendants, or whether the defendants repudiated the contract in consequence of' which the plaintiff elected to hold them for its damages without manufacturing or tendering the goods. The plaintiff proved the cost of manufacture and sought a recovery for the difference between the cost of manufacture and the contract price, and the case was submitted to the jury upon the theory that that was the proper rule of damages. The court set aside the verdict and granted a new trial upon the ground that the measure of damages is the difference between the market value and contract price and the plaintiff appeals. The question hinges upon whether the breach of contract consisted, in the failure to accept manufactured goods, or in a repudiation of the contract which relieved the manufacturer from manufacturing and tendering a delivery. Where the purchaser of goods to be manufactured repudiates the contract
In the case at bar the only evidence as to whether the goods were manufactured is the allegation of the complaint, and we think the fair inference arising thereon is that they were manufactured at the time of the breach, for it is difficult to perceive how otherwise a tender of delivery could have been made. The inference arising on these allegations, in the absence of any allegation as to what has been done with the goods, is that the plaintiff has elected to retain the goods and sue for its damages. (Gray v. Central R. R. Co., 82 Hun, 523.) He cannot after manufacturing and tendering the goods recover his full damages and retain the goods if they have a market value without giving the purchaser credit therefor.
Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred;
Order affirmed, with costs to respondent.