179 A.D. 687 | N.Y. App. Div. | 1917
Lead Opinion
The complaint contains two counts; the first is for goods sold and delivered under an express contract and for damages for loss of profits caused by defendant’s failure to allow plaintiff fully to perform an executory contract, and the second is on a quantum meruit for other goods sold and delivered. At the close of plaintiff’s case the court dismissed her claim for loss of profits and she recovered on her remaining claims; and on the verdict judgment was entered for the amount of the recovery and dismissing her complaint for loss of profits. She appealed generally from the judgment but she enforced it in so far as it was in her favor; and on defendant’s motion her appeal to this court was dismissed evidently on the ground that by enforcing part of the judgment she was debarred from prosecuting her appeal which was from the whole judgment (158 App. Div. 879); but the Court of Appeals held that this was error and remitted the case to this court to consider and decide whether the trial court erred in dismissing the plaintiff’s claim for loss of profits. (216 N. Y. 343.)
The contract involved in the first count of the complaint is in the form of an order in writing signed by the defendant on the 7th of December, 1909. It was delivered to and accepted by the plaintiff. It relates to ten items of piano hardware consisting of wires, screws, spoons, brass center
The plaintiff in the first count of her complaint alleges that she lost the profits which she would have made on the sale of the merchandise covered by but undelivered under the contract by reason of defendant’s breach and that such loss of profits amounted to the sum of $2,276.69. It is not alleged and it does not appear by the contract whether the goods were manufactured and on hand, or to be procured in the market or to be manufactured. If they were manufactured and on hand or purchasable in the market the plaintiff’s loss of profits on the contract is to be measured by the difference between the market value or market price of the goods and the contract price; and if they were to be manufactured her loss is to be measured by the difference between the reasonable cost of manufacture and the- contract price. (Devlin v. Mayor, 63 N. Y. 8; Todd v. Gamble, 148 id. 382; Lehmaier v. Standard Specialty & Tube Co., 123 App. Div. 431; Isaacs v. Terry & Tench Co., 125 id. 532; Hinckley v. Pittsburgh Steel Co., 121 U. S. 264; Belle of Bourbon Co. v. Leffler, 87 App. Div. 302; Boehm v. Horst, 178 U. S. 1.)
Counsel for the respondent contends that the plaintiff offered no competent evidence of loss of profits. The plaintiff showed by the testimony of her son, who managed her business, that she was not a manufacturer and that on receiving the order she placed it with the firm of Blake & Johnson, who were manufacturers, and that she was to receive the goods from them at ten per cent less than the contract price; that she had been acting as a sales agent for Blake & Johnson under an arrangement by which she received a commission of ten per cent on all goods of their manufacture which she sold; and that they accepted the contract in question on those terms, but billed the goods to her and she paid them therefor. It was not alleged or shown that the defendant was aware of
The plaintiff not only offered to show that the goods were not manufactured and in stock, but that they were to be manufactured; and a conversation with the defendant’s manager with respect thereto; all of which was excluded on objection interposed by the defendant that it was incompetent, irrelevant and immaterial. Had this evidence been received it might and probably would have appeared thereby that the defendant was aware not only that the goods were to be manufactured, but that plaintiff was not a manufacturer and would be obliged to procure their manufacture by others and contemplated placing the order with Blake & Johnson.
With respect to the cost of manufacture the plaintiff’s son testified that the cost price of the goods to the plaintiff was ten per cent less than the contract price, but that testimony was evidently based on the special contract between the plaintiff and Blake. & Johnson and was not binding on the
The plaintiff, however, did not rest on that evidence but called the general manager, who was the secretary and treasurer, of Blake & Johnson and presumably was familiar with the cost of manufacturing; and asked him among other things, “ Will you state what the cost price was in December, January and February, 1909 and 1910, for the manufacture of the goods you have testified to just now by your firm? ” This was objected to as incompetent, irrelevant and immaterial. The objection was sustained and counsel for plaintiff excepted. I am of opinion that the court erred in excluding that evidence. The only possible objection I see to it is that it called for the cost of manufacture to the firm of Blake & Johnson instead of what would be the reasonable cost of manufacturing the goods; but I think the evidence of what it would actually cost the manufacturer was some evidence of the reasonable cost of manufacture. The objection was not to the form of the question and it is not to be assumed that it was taken because the question did not call for the actual cost or reasonable cost for no such claim is made even now. The contention made by counsel for respondent now is, and it was probably the same then, that the contract between plaintiff and Johnson was one of agency and that, therefore, no loss of profits thereunder is recoverable. It may be that it cannot be presumed that the manufacture of the goods would have cost no more than Blake & Johnson were selling them to plaintiff for and that, therefore, the fact that they contracted to sell them for ten per cent less than the defendant agreed to pay therefor would not be evidence that the reasonable cost of manufacture would not be more than that amount; but the evidence so excluded, if received, would have shown the actual cost of manufacture and would, I think, be more satisfactory than opinion evidence as to what would have been the reasonable cost of manufacture, which clearly would have been competent. The Court of Appeals in Devlin v. Mayor (supra) held that where goods are to be manufactured or an executory contract is to be performed the profits recoverable for a breach in failing to allow performance is the difference between what it would have cost the plaintiff to perform and
Some general evidence was received to the effect that the goods covered by this contract which were not delivered to the defendant were manufactured by Blake & Johnson and billed to the plaintiff, but there is no evidence as to the disposition thereof. On that evidence the defendant claims that the measure of damages is the difference between the market value of the goods or what the plaintiff received for them and the contract price, but with the exception of one or two small lots which Blake & Johnson did not manufacture there is no evidence concerning the market value or what they were sold for, if sold, by plaintiff. Counsel for the plaintiff contends that the witnesses who testified on this subject did not intend to testify that all of the goods covered by the contract were subsequently manufactured by Blake & Johnson for the plaintiff, but only that part of the goods manufactured and delivered to the defendant for which it had not paid and for which a recovery has been had in this action. That, I think, is the fair construction of the testi
I am, therefore, of the opinion that the ends of justice require a reversal and a new trial, with costs to appellant to abide the event.
Clarke, P. J., and Dowling, J., concurred; Page and Shearn, JJ., dissented.
Dissenting Opinion
In my opinion the complaint was properly dismissed as to the second cause of action. The plaintiff was not a manufacturer of the goods contracted to be sold; hence to allow her to recover the difference between the sale price and the cost of manufacture would allow her to recover the damage that was suffered by the manufacturer and not by her. The plaintiff cannot recover for the commission which she would have received had the sale been completed, for that would have been a special damage, i. e., damage that naturally, but not necessarily, flowed from the breach of the contract, which must be specifically alleged and it must have been proved that the plaintiff’s agreement for the commission was known to the defendant at the time of the making of the sale contract, and hence within the contemplation of the parties.
Shearn, J., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.