Windmuller v. Pope — 12 N.Y. St. Rep. 292

Majority

p. 292

Louis Windmuller et al., Resp’ts, v. Thomas J. Pope et al., App’lts.

(Court of Appeals,

Filed December 6, 1887.)

Headnote

1. Contract for sale of goods—Breach of by vbndee-^-Notice to vendor—When bight of action accrues.

The defendants having no ified the plaintiffs that they would not receive the iron r- ils mentioned in the contract or pay for them, and having informed them the next day that if they brought the iron to New York they

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would do so at their own peril and ad visedthem that they had better stop at once attempting to carry out the contract, the plaintiffs were justified in treating the contract as broken by the defendants at that time and were entitled to bring the action immediately for the breach without tendering the delivery of the iron or awaiting the expiration of the period of performance fixed by the contract.

8 Same—Right of vendee to retract—Notice—When lost.

The defendants could not retract their renunciation of the contract after the plaintiffs had acted upon it and by a sale of the iron to other parties changed their position.

3. Same—Rule of damages.

The rule of damages in an action by a vendor of goods and chattels, for a refusal by the vendee to accept and pay for them, is the difference between the contract price and the market value of the property at the time and place of delivery.

Appeal from a judgment of the supreme court, general term, first department, affirming a judgment entered on a verdict of a jury in favor of the plaintiffs at a circuit court.

The action was brought to recover damages for the breach of a written contract for the sale and delivery of about 1,200 tons of old Vignol rails at thirty-five dollars a ton, to be shipped from Europe at any time from May 1st tó July 15, 1880. Plaintiffs entered upon the fulfillment of the contract on their part, made various contracts for the purchase of the iron and chartered a vessel to carry the rails to Mew York. About June 12 (the price of iron having fallen), the defendants informed the plaintiffs through their broker “ that they (defendants) would not receive the iron contracted for or any part of it, or pay for any part.” Defendants further stated that if plaintiffs brought the iron here to Mew York they would do so at their own peril; that they would not take the iron and that plaintiffs better stop at once attempting to carry out the contract, so as to make the loss as small as possible. The plaintiffs then stopped any further steps in sending the iron here, and ordered it sold in Europe at the best possible price, and canceled the charter with the owner of the vessel which was to carry the iron to the United States.

Carlisle Norwood, Jr., and W. W. Niles, for app’lts; Bernard Roelker and Cephas Brainard, for resp’ts.

We think no error is presented upon the record which requires a reversal of the judgment.

The defendants having on the 12th of June, 1880, notified the plaintiffs that they would not receive the iron rails or Say for them, and having informed them on the next day rat if they brought the iron to Mew York they would do so at their own peril, and advised them that they had better stop at once attempting to carry out the contract, so as to make the loss as small as possible, the plaintiffs were justi

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fled in treating the contract as broken by the defendants at that time and were entitled to bring the action immediately for the breach, without tendering the delivery of the iron, or awaiting the expiration of the period of performance fixed by the contract; nor could the defendants retract their renunciation of the contract after the plaintiffs had acted upon it and by a sale of the iron to other parties changed their position. Dillon v. Anderson, 43 N. Y., 231 ; Howard v. Daly, 61 id., 362 ; Ferris v. Spooner, 102 id., 12; Hochster v. De La Tour, 2 El. & Bl., 678; Cort v. Ambergate, etc., Railway Co., 17 Ad. & El., 127; Crabtree v. Messersmith, 19 Ia., 179 ; Benjamin on Sales, § 567, 568.

The ordinary rule of damages in an action by a vendor of goods and chattels, for a refusal by the vendee to accept and pay for them is the difference between the contract price and the market value of the property at the time and place of delivery. Dana v. Fiedler, 12 N. Y., 40 ; Dustan v. Me Andrew, 44 id., 72 ; Cohen v. Platt, 69 id., 348.

The just application of this rule to the circumstances in this case, requires that in computing the damages the defendants should be credited with the difference between the freight from Cronstadt to New York, fixed by the charter-party, less the sum which it cost the plaintiffs to be released from the charter, and also with any other expenses which the plaintiffs would naturally have incurred in performing their contract to deliver the iron in New York. The contract price being known, and the market price of the iron in New York at the time of the breach and subsequently having been proved, as also the sum which the plaintiffs paid for damages and expenses on account of the charter and the customary rate of insurance, the computation” of the damages was a simple arithmetical problem. All these elements were before the jury and the verdict does not exceed, indeed it is less than the sum which, on the view of the evidence most favorable to the defendants, the plaintiffs were entitled to recover. The plaintiffs on the trial proved the market value of the iron at St. Petersburg, where it was at the time of the breach, and also that they sold it on the twelfth of July at a certain price. The plaintiffs also gave evidence of various expenditures made by them, which it is unnecessary to recapitulate. It is claimed that some of these items could not properly be considered in estimating the damages. Assuming that this may be true the fact remains, nevertheless, that the verdict is fully warranted by the competent and uncontradicted evidence. The amount of the verdict is justified w'hether the market value of the iron in St. Petersburg or New York is taken as a basis. The evidence also shows, without a contradiction, that on the resale the iron brought its full market

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value irrespective of storage, and it is not important to determine whether the plaintiffs could fix the market price 'by a sale without notice to the defendants.

There is no merit to the defense and the exceptions are in the main technical and frivolous, and none of them, we -think, require a reversal of the judgment.

The judgment is therefore affirmed.

All concur, except Rapallo, J., absent.