Fuerst Bros. & Co. v. Polasky

249 F. 447 | 2d Cir. | 1918

LEARNED HAND, District Judge

(after stating the facts as above). [1] This being a suit for breach of warranty, the ordinary measure of damages would be the difference between the value of the monazite sand contracted for and that delivered. Florence Oil, etc., Co. v. Farrar, 119 Fed. 150, 55 C. C. A. 656. Now the value of the lower grade of monazite sand is theoretically not to be determined by the absence of that thorium which the plaintiff paid for and did not get. Moreover, in the case at bar the plaintiff’s own evidence actually showed that 5 per cent, monazite sand has a value of $50 per ton for each percentage, instead of $55. Hence the plaintiff might have asked that the value of the sand actually delivered be taken at $265.50 per ton, instead of the price paid, $349.25. The damages under that aspect would have been $2,816.35, instead of $1,925, though this was still not sufficient for purposes of jurisdiction. In order to supplement the discrepancy between the difference in value, stated at $1,925, and the jurisdictional amount, the plaintiff added to its ad damnum, by way of special damages, that proportion of the total cost of treating the monazite sand which the absent percentage of thorium bore to the total percentage contracted for, roughly 20 per cent. Its theory was that it might take as absolute loss that proportion of the cost which would have resulted in extracted thorium, if the delivery had been according to the contract.

[2, 3] If the allegation in the complaint of these added damages is on its face insufficient in law, the court below was without jurisdiction. Vance v. Vandercook, 170 U. S. 468, 18 Sup. Ct. 645, 42 L. Ed. 1111; North Amer., etc., Co. v. Morrison, 178 U. S. 262, 20 Sup. Ct. 869, 44 L. Ed. 1061; Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 23 Sup. Ct. 754, 47 L. Ed. 1171. The last case is particularly close, holding that even notice to the seller of the buyer’s purposes is not sufficient charge him with the loss resulting from their disappointment. There can be no doubt that the tenth article was insufficient as an allegation of special damages, for it did not allege that the plaintiff could not ascertain the character of the sand without incurring the cost of treating the whole of the sand, or that the defendant had contracted with reference to any such necessity nor indeed, even that it had had notice of it, assuming that such an allegation could have survived (Globe Refining Co. v. Landa Cotton Oil Co., supra), under the peculiar circumstances of the case. Without some sufficient allegations the damages were necessarily limited by the ninth article and were too small. It follows that the District Coiirt was without jurisdiction, and should have dismissed the complaint stta sponte.

[4, 5] Furthermore, even if we were not strictly limited in jurisdictional questions to the form of the pleading, or assuming that, since the case was tried, and the plaintiff got a verdict, we might treat the pleadings as conformed to the proof, the result is no different, because under no pleading that the proof would admit was there jurisdiction. It appeared on-the contrary that the plaintiff learned of the deficiency of the sand in thorium oxide when only a small part of it, between 3 and 4 tons, had as yet been ground. There was, besides, not the least color for saying that the defendant had even notice, to say nothing of more, of this supposed necessity to run through the whole of the sand. Finally, passing even these fatal deficiencies, there was no proof of special damages, if any such were recoverable. The proportion of the cost of treating the sand would not have been the measure. The proper measure would in that event have been the value of extracted thorium, in quantity equal to what the sand should have contained, less the cost of extraction, plus the contract price of the sand. There was no evidence of the value of extracted thorium, nor any basis for inference of its value.

The judgment is reversed, and the complaint dismissed for lack of jurisdiction, with costs.