House v. Babcock — 43 N.Y. St. Rep. 500

Majority

p. 500

Abram T. House, App’lt, v. Silas B. Babcock, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

Pleading—Complaint.

The complaint alleged a sale to defendant óf a quantity of hops at a certain price; a payment thereon; a delivery at the time specified but that defendant was not present and did not receive or pay for them; that he had refused to do so; that plaintiff afterwards sold them for the best price he could obtain after giving defendant notice of the sale, and demanded judgment for damages for the difference in price and the expense of caring for the hops and selling them. Feld, that .the complaint stated but one cause of action.

Appeal from an order of the special term, entered in Oswego county September 21, 1891, upon a motion by the defendant to have the plaintiff’s complaint made more definite and certain, and requiring the plaintiff to set up separately, and number the dif

p. 501

ierent causes of action stated therein. The order granted provided that within twenty days after service upon the plaintiff’s attorneys of a copy of the order the plaintiff should serve upon the defendant’s attorneys a 'copy of the complaint amended by setting up in the first count thereof a cause of action for breach of contract, and in separate counts thereof any further causes of action which tile plaintiff might have against the defendant, and required the plaintiff to pay ten dollars costs of the motion.

Reilly & Ludington, for app’lt; Goodelle & Nottingham, for resp’t.

It will be seen by a reference to the complaint that it was in substance alleged therein that in November, 1888, the plaintiff sold the defendant 993 pounds of hops at twenty-five •cents a pound; that the defendant paid him five dollars thereon; that the hops were to be delivered at plaintiff’s residence on or before November, 1888, when the remainder of the purchase price was to be paid; that the hops were delivered, but defendant was not present, and did not receive and pay for them; that plaintiff .had requested the defendant to take the hops and pay the purchase price, which he neglected and refused to do; that plaintiff held the hops until January, 1891, when, as the agent of the defendant, he sold them for twelve dollars; that he gave the defendant notice of his intention to sell them, and that he sold them for the best price.he could obtain; that he was damaged in the sum of fifty dollars in caring for said hops and for expenses in selling them; that by reason of the defendant’s failure to perform his contract the plaintiff sustained damage in the sum of $281.25.

On the failure of the purchaser to perform a contract for the sale'of personal property, the. vendor among other remedies may .sell the property, acting as the agent for this purpose of the vendor, and recover the difference between the contract price and the price obtained on such sale. Dustan v. McAndrew, 44 N. Y., 72 ; Lewis v. Greider, 51 id., 231; Cahen v. Platt, 69 id., 352 ; Mason v. Decker, 72 id., 599; Porter v. Wormser, 94 id., 442; Sawyer v. Dean, 114 id., 469; 23 St. Rep., 906 . The expenses of making such sale, as well as the expenses of preseving and taking care of the property after default and before the sale, together with the difference between the contract and selling price, is the proper measure of damages in such action. Sawyer v. Dean, 114 N. Y., 469 ; 23 St. Rep., 906 ; Lewis v. Greider, 51 N. Y., 231 .

When we read the complaint in the light of the authorities cited we are unable to discover that it contains more than one cause of action. The action was obviously to recover the difference between the contract price of the hops and the price at which they were sold, together with the expense of taking care of and selling them.

If the order had required, the plaintiff to make this complaint more definite and certain as to the items, or what constituted the fifty dollars claimed as damage in caring for the hops and for expenses in selling them, another question would have arisen.

The order granted required the plaintiff to serve a new com

p. 502

plaint setting up in the first count a cause of action for breach of contract, and in separate counts any further causes of action which, he might have against the defendant and to pay the defendant ten dollars costs of that motion. There being but one cause of action stated in the complaint, we think the order was improper and should be reversed.

Order reversed, with ten dollars costs and disbursements.

Hardin, P. J,, and Merwin, J., concur.