Canda v. Wick

Headnote

Damages.—Breach of contract to accept goods.—Evidence that plaintiff received^ for the unaccepted goods a higher price from a third party, when not admissible.

Appeal by defendant from judgment in favor of plaintiff, entered upon report of referee.

The second cause of action set forth in the complaint is against the defendant for a breach of contract arising out of the failure of the defendant to receive a quantity of brick duly tendered pursuant to a sale and purchase thereof.

The court at General Term, said : .“The counsel argues that the referee erroneously excluded questions by defendant calculated to call for proof that the plaintiff in fact sold the brick, which he tendered under defendant’s contract, at a higher price than was provided to be paid by that contract, so that there was no loss. The plaintiff of whom as a witness these questions had been asked, did not testify that he sold these bricks after their non-acceptance

by the defendant, but that he had made deliveries of them under contracts already made with other parties. The defendant was not permitted to show what prices he would receive under these contracts. This was correct, for admitting that the prices were higher in those contracts-than in this, the plaintiff would be damaged by the breach of this, inasmuch as they would be entitled to the benefits of the performance of all the contracts. There would be indeed a question as to whether the plaintiff could have performed the other contracts, unless they used the bricks they were to deliver under the present contract. This was not presented upon the trial, to the referee, or in any way brought to the attention of the plaintiff.”