18 Misc. 169 | N.Y. App. Term. | 1896
The principal question involved in, this appeal is whether the judgment is based upon the Correct rule of damages. The contract, which was made on April 26, 1895, was for the purchase of three carloads, or 17,550 gallons, of high-proof spirits, at $1.20£ per proof gallon; and one carload, or 5,750 gallons, of alcohol, at $1.20-1,- per proof gallon, free on board, at Peoria; shipment to be made Monday, Tuesday, Wednesday and Thursday of the week ending May 4, 1895;'and payment to be made on sight draft against documents. -The contract was made in Rew York, where the parties resided. Kot hearing from the goods, the purchasers, Ross & Keany, on May 8th or 9th wrote to the defendant, inquiring the cause of the delay, and on May 16th, received a letter refusing to make the delivery. The question is whether the plaintiffs were entitled as damages to the difference between the contract price of the goods and their market value at Peoria on the date or dates of delivery, or such difference on the day when they first had. notice of the refusal to deliver.
The general rule that the damage recoverable is the difference on the day fixed by the contract for delivery, is based upon the assumption that immediately upon the breach, the purchaser can go into the market and buy other goods of a similar quality and quantity. But this rule obviously rests upon -the assumption that the purchaser has knowledge at that time of the breach; and in the great . majority of cases such is the fact, because delivery is usually made to him or to some agent who has such knowledge of the facts, that the breach would be chargeable to him. But the present case is exceptional in this, that while the contract names Peoria, and certain dates in May as the place and time of delivery, it does not appear that the purchasers had any knowledge or means of Knowing on that date that a breach -had occurred or was contemplated. It
The purchasers did use diligence in seeking to learn the cause of the delay, when put upon inquiry by the nonarrival of the bills of lading in expected time, for on the 8th or 9th of May they wrote to the defendant, and prior to that time one of them had inquired of the defendant’s office o-ver the telephone, concerning the delivery, and had been told that Mr. Quinn would have to be seen about the matter. Under such circumstances it would be manifestly unfair to offer the purchasers the difference of market price at the time of delivery in Peoria, upon the ground that at that date they were bound to secure themselves by purchasing other goods in place of those not delivered. And under the facts of this case it must be held that the damage recoverable is the difference between the contract price and the market price, on the date when the purchasers Avere definitely informed that delivery would not be made.. The damage allowed was based upon the market price of the goods at the place of delivery (Peoria), on the 10th of May, and I find no ground for the discussion on this appeal of any question as to the market value in New York. By a stipulation in the case, the market value at Peoria on May 10th, the earliest date at which the purchasers had notice of nondelivery, was $1.23 per gallon for high-proof spirits, and $1.22 for alcohol, and the difference between these prices and $1.20i per gallon named in the contract, gives by computation the exact amount of the verdict.
Another question arising upon this appeal is upon the claim of the defendant, that in making this contract it was acting merely as agent fór a disclosed principal by whom the goods were manufactured, The Distilling & Cattle Feeding Company. Mr. Quinn testified for defendant that at the times involved in this section, he was agent for the receiver of the Distilling & Cattle Feeding Company in the eastern territory; and that his exclusive business was disposing of the Distilling & Cattle Feeding Company’s products
The contract for the sale of these goods was made by the L. H. •Quinn Company, and not by Mr. Quinn individually. ' There was no evidence that the company was acting as agent. There is a difference between an agency in Mr. Quinn and in his company. From the whole testimony in the case it is manifest that this de^ fendant was selling the goods on its own responsibility and not as agent. Not only does the contract, read: “ Bought of the L. H. Quinn Company,” without any reference whatever to an agency for any party, but in the letter of the defendant repudiating the contract, and refusing'to deliver the goods, there is no suggestion it had been acting except on its own responsibility. There is nothing inconsistent with Mr. Quinn’s being individually the agent of the receiver for the sale of the products of the Distilling & Cattle Feeding Company, and a contract by his own corporation, the L. H. Quinn Company, for the sale of such goods as principal.
The alleged error in sustaining an objection to the question: “You knew he was acting as agent for the Distilling & Cattle Feeding Company? ” was cured by a subsequent answer of the witness, admitting such knowledge.
The defendant’s request for the instruction above referred to was based upon an admission by the plaintiff’s assignor, Boss, when under cross-examination, that he “ knew that L. H. Quinn & Company were the recognized agents here, of the Distilling & Cattle Feeding Company.” This admission would be proof of the fact of agency> if the defendant had been content to rely upon it; but instead of doing so it called L. H. Quinn and proved by him that he was the agent of the Distilling & Cattle Feeding Company, thus disproving its own allegation in the answer, disproving any presumption arising from the admission of Boss and' making such admission immaterial, since he could not know what was not a fact. The request, based upon admission of such knowledge, was, therefore, properly denied.
The judgment should be affirmed, with costs.
McAdam and Bischobt, JJ., concur.
Judgment affirmed, with costs.
