194 A.D. 848 | N.Y. App. Div. | 1921
Lead Opinion
November 11, 1918, .the defendant bought, and the plaintiff agreed to sell, 60,000 pounds of pure buckwheat flour at six dollars and fifty cents per 100 f. o. b. Altamont, N. Y., bulk basis, for shipment last week in November, sooner if possible.
November twenty-second the defendant refused to take the flour and expressed a willingness to pay cancellation price, and on November thirtieth the plaintiff notified the defendant that unless he took the flour pursuant to the contract he would sell the same in the open market and expect him to pay any loss resulting therefrom. Thereupon it was mutually agreed that the time of performance should be extended sixty days from December first. In the latter part of January the defendant notified the plaintiff that he would not receive the flour. ■ Defendant, by breaching the extended agreement, lost all benefits under it and stood with notice that a resale would take.place and that he would be charged with any loss resulting therefrom.
A complaint need not be a model; its object is to inform the defendant of the claim made against him. It is to be liberally construed to promote substantial justice, the reasonable intendments being in favor of the pleader. This complaint makes it apparent that the actual value of the flour was only $1,857.30 and that the plaintiff was seeking to recover the difference between that sum and the contract price. The defendant could not have misunderstood the claim made against him, and must have been in court ready to meet a claim for any legal damage coming to the plaintiff, based upon the difference between the contract price and the value of the flour. As we have seen, there was no substantial market for the flour until the time of the resale. Manifestly the resale price was the best price that could have been obtained for the flour after the January repudiation of the contract. The complaint shows the contract price and fairly shows the price most favorable to the defendant after the breach of the extended contract. It is unnecessary here to consider whether or not the case fell within the provisions of section 141. The facts as alleged bring the case fairly within section 145. It may be that as to the market price the plaintiff pleaded evidence. The resale, upon the facts proved, was some evidence of value, when we consider that there was no real market until then. The plaintiff had, however, notice before the buckwheat was ground that the defendant would not take the flour. It was his duty, so far as he reasonably could, to mitigate or at least not increase the damage which would fall upon the defendant. The cost of grinding apparently added seventy-five dollars to the value of the buckwheat when it became flour, and the defendant probably gets the benefit of that in estimating the market value, but under the circumstances surrounding the case it would not be inequitable to deduct from the plaintiff’s damage the cost of grinding. It was error to strike from the record the evidence as to a resale, as in any event it tended to show the market value of the flour; to prevent the plaintiff from showing the value of
The judgment should, therefore, be reversed and a new trial granted, with costs to the plaintiff to abide the event.
All concur, Cochrane, J., with an opinion.
Concurrence Opinion
The gravamen of the action is the breach of contract by the defendant. The plaintiff both alleged and proved a complete cause of action. He' likewise proved or attempted to prove damages. A recovery was denied him because in his complaint he mistook the correct measure of damages. “It is not material that the plaintiff did not demand the precise damages to which he was entitled, or that he mistook the true rule of damages in his complaint. The complaint averred a legal wrong and a resulting pecuniary injury, and it was competent for the court, under the complaint, to adjust the recovery upon the true, basis.” (Colrick v. Swinburne, 105 N. Y. 503, 507; Williams v. Conners, 53 App. Div. 599, 601; Sussdorff v. Schmidt, 55 N. Y. 319, 324; Isman v. Loring, 130 App. Div. 845, 852.) The damages sought to be recovered were not special but general and I think the trial justice should have permitted a recovery therefor even though an improper measure of such damages may have been unnecessarily alleged in the complaint.
On another theory I think a recovery should have been allowed to the plaintiff. The manifest purpose of subdivision 4 of section 145 of the Personal Property Law (as added by Laws of 1911, chap. 571) is to prevent the seller from enhancing his damages by doing something in execution of the contract after its repudiation. There is nothing in the statute which prevents the seller from adopting the measure of damages indicated in the complaint except that they must be limited to such an amount as he “would have suffered if he did nothing toward carrying out the contract or the sale after receiving notice of the buyer’s repudiation or countermand.” That is a matter of evidence. I think, therefore, the plaintiff
The judgment should be reversed.
Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.