176 A.D. 209 | N.Y. App. Div. | 1916
The complaint contains twelve causes of action separately stated and numbered. The 1st, 2d, 4th, 6th, 8th, 9th, 10th and 11th causes of action are to recover damages for breaches of a contract in writing made between the parties on the 1st day of September, 1915, by which defendant agreed to deliver at the plaintiffs’ works in Buffalo, N. Y., a certain quantity of sulphuric acid during each of the months of December, 1915, and the eleven succeeding months. By the express terms of the contract the shipment agreed to be made each month was to be treated as a separate and independent contract; and these causes of action are for damages for failure to deliver the quantity agreed during eight months of the period. The other causes of action are based on the same contract but they are for breaches of warranty with respect to the quality of the sulphuric acid delivered in four of the months. The ground upon which the warrant of attachment was granted is that the defendant was a foreign corporation. The grounds upon which the warrant of attachment evidently was vacated, and upon which it is sought to sustain the order, are that the moving papers fail to show that the defendant was a foreign corporation, and are insufficient to show the damages sustained by the plaintiffs by the breaches of the contract to deliver the quantity of sulphuric acid agreed to be delivered and for breaches of warranty with respect to the quality of the sulphuric acid delivered.
The complaint, which is verified, alleges, not upon informa
With respect to the damages for the failure to deliver sulphuric acid the plaintiffs allege generally in each count that they sustained the amount of damages stated therein. The affidavit of the plaintiff who verified the complaint shows the number of tons which the defendant failed to deliver during the months to which each of such causes of action relates; that the market value of the acid at the time when it should have been delivered was eighty dollars per ton; and that by such failure on the part of the defendant to deliver the acid the plaintiffs have sustained damages in the sum of seventy-nine thousand seven hundred and sixty-five dollars and thirty-five cents. This amount is a little more than the difference between the price agreed to be paid by the plaintiffs for the acid, which was thirty-one dollars per ton delivered at Buffalo, and the value of the quantity of acid not delivered, computed at the rate of eighty dollars per ton shown by the affidavit to have been its market value. The difference is doubtless accounted for by interest which is evidently included in the general statement of the damages. The affidavit with respect to the market value is general and does not show specifically in what market the value of the acid was eighty dollars, but the affiant states that he was thoroughly familiar with the market value of sulphuric acid both in Buffalo and in New York city at the time.
With respect to the damages for breach of warranty it is alleged generally in each cause of action what the percentage of sulphuric acid in the acid delivered was; and in each instance it is alleged to have been considerably less than that required by the contract. In each cause of action the difference between the value of the acid delivered and the acid with the percentage of sulphuric acid required by the contract per ton is alleged, and it is also alleged that this difference in each instance was
The learned counsel for the defendant contends that neither affidavit shows that the affiant was qualified to speak with respect to the market value either of the surphuric acid as called for by the contract or of the sulphuric acid delivered thereunder which it is. claimed did not contain the required percentage of sulphuric acid; and that these affidavits contain no competent evidence showing that the plaintiffs have sustained any damages from either cause. We are of opinion that the affidavit sufficiently show the necessary evidentiary facts. Either of the affiants if called as a witness on the trial would be permitted to testify with respect to the market value of the acid on qualifying substantially as stated in his affidavit. The delivery was to be made in Buffalo, and each affiant states that he was familiar with the market value of the acid both in Buffalo and in New York city. The fair inference from the affidavits is, I think, that the market value was the same
Clarke, P. J., Scott, Dowling and Page, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and attachment reinstated.