266 Pa. 457 | Pa. | 1920
Opinion by
This suit for damages is by a vendee for an alleged breach of contract in the purchase of a chemical product, known as hydrate alumina. Defendant is a manufacturing company located at Natrona, Pa., and plaintiff a metallurgical engineer residing in New York. In the summer of 1915 he opened negotiations with the company for the purchase of the product for use during 1916. After some preliminary negotiations, defendant, on September 24,1915, wrote plaintiff definitely offering him 100 tons a month of such product, May to December inclusive, 1916, at four cents per pound f. o. b. Natrona, Pa., net cash, offer open for acceptance until Nov. 1, 1915. Four days later the offer or option was enlarged so as to begin March 1, 1916, and, on October 19, 1915, the time for acceptance was extended to November 15th. On November 11, 1915, plaintiff wrote defendant: “Referring to your letter of September 24, 1915, and to prior and subsequent correspondence between us on the above subject, I beg to accept your offer of 100 tons monthly of Hydrate of Alumina, March to December inclusive, 1916......at 4c per pound f. o. b. Natrona, Penn., terms net cash.” Defendant acknowledged this letter and requested the name of the buyer, so that contracts might be written up, etc. Plaintiff made no reply to this request and, on January 22, 1916, defendant wrote plaintiff: “Failing to receive any reply to our respects under date of November 15, 1915, or, in fact, any further word from you in the above matter, we take it that your plans have not developed as anticipated, so that we are free to consider the above matter as being a Mead’ issue.” Two days later plaintiff replied: “The matter is not a Mead’ issue and I will send you shipping instructions before March 1st for the 100 tons you are to deliver to me during March.” The shipping instructions were duly given but defendant declined to deliver the specified hydrate alumina or any part thereof, and set up as a defense that the offer to sell was made upon
Defendant brings this appeal from judgment entered upon the verdict of $34,500 for plaintiff, and the most important question is that of damages. The general rule is that, in an action by a vendee against a vendor for failure to deliver goods according to contract, the measure of damages is the difference between the contract price and the market value at the time and place of delivery, with interest: 2 Sedgwick on Damages (9th ed.), sec. 734, p. 1530; Honesdale Ice Co. v. Lake Lodore Imp. Co., 232 Pa. 293; Arnold et al. v. Blabon, 147 Pa. 372; and see sec. 67 (p. 562) of the Sales Act of 1915, P. L. 543; and plaintiff may recover such damages without having supplied his wants elsewhere: Hauptman v. Pa. W. Home for Blind Men, 258 Pa. 427. The trial judge so instructed the jury; but the trouble is the lack of evidence of market value. The only proof as to that was the amount for which plaintiff contracted to resell 25 tons of the March delivery, and the price at which defendant supplied its other customers during the months in question. These sales were individual transactions in comparatively small amounts, not at all corresponding
It does not appear that the product in question was not obtainable in the open market, if it did plaintiff might recover his actual damages, that being the rule in such case: Pittsburgh Sheet Mfg. Co. v. West Penn Sheet Steel Co., 201 Pa. 150; Theiss v. Weiss, 166 Pa. 11; Culin v. Woodbury Glass Works, 108 Pa. 220; 35 Cyc. 641-2; 2 Sedgwick on Damages (9th ed.), sec. 734, p. 1534. However, the verdict could not be sustained upon that basis, as plaintiff proved no actual damages. Had he required the hydrate alumina in his business and procured it elsewhere, or made it at a cost greater than the contract price, there would be a measure of damages, but no such thing occurred. It may be urged that in such case he could have resold it at a profit; but how can it be determined that an article without market value can be resold at a profit? The chances thereof are too speculative to form the basis of a recovery: Spiese v. Mutual Tr. Co. et al., 258 Pa. 422; Pennypacker v. Jones, 106 Pa. 237. Moreover, anticipated profits on a resale are not recoverable unless in contemplation of the parties when the original contract was made (Clyde Coal Co. v. P. & L. E. R. R., 226 Pa. 391; David v. Whitmer & Sons, 46 Pa. Superior Ct. 307), and here they were not. In brief, unless the proof shows the subject
The assignments of error relating to other questions are not sustained.
The judgment is reversed and a venire facias de novo awarded.