Ernesto Foglino Co., Inc. v. Webster

Per Curiam. We agree with the result reached by the Appellate Division in this case, except as to the question of damages. The trial court fixed their measure as the difference between the market value of the coal on the date when the loss of the plaintiff was to be determined0 and the price which under the contract of sale it was to receive therefor, or $48,750. Because it had a contract, however, to purchase this coal for more than its market price, the Appellate Division has said that the profit it would have made on this particular transaction is the loss it has sustained by the wrongful act of the defendants. It, therefore, reduced its judgment to $22,500. Having obligated itself to purchase 15,000 tons of coal *518 at $31.75 per ton when the market price was about $30.05, because it was to receive about $33.25 if the transaction had been completed, it would have made, it is true, profits of $1.50 a ton. But the sale failed. Plaintiff is left with 15,000 tons of coal on its hands, or for which it is responsible.. For it it has paid or must pay $31.75 per ton. Its market value is $30.05. On each tori it will lose $1.70, or $25,500. Yet it is said it is compensated by the judgment as reduced. We do not think so. It is argued, however, that on the facts before us such a situation is but theoretical. The original seller of the coal has consented to abrogate its contract. Even so, the rule to be adopted does not vary because of the generosity of third parties. The judgment of the Appellate Division should be modified so as to award the plaintiff judgment in the sum of $48,750 as damages, with interest thereon from April 30, 1920, and as so modified affirmed, with costs to the plaintiff. His cock, Ch. J., Cakdozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur. Judgment accordingly.