Rosenthal v. Empire Brick & Supply Co.

Clarke, J.: . The question involved arises out of an alleged breach of contract for the sale and delivery of brick. The contract was in writing, and the material part thereof is as follows : “ We propose to furnish you all the masons’ materials required for the construction of seven houses on the S. S. of 13.4th street, 100 feet west of Amsterdam avenue, this city, all to be delivered at the following prices and conditions: Hard brick at the market price, guaranteed not to exceed $9.50 per ¡M¡. * * * It being understood that you will require about three million brick to complete the operation, and that all the hard brick will be received by you before December 1st, 1905.” As we interpret this contract it required performance before December 1,1905. The contract was in the shape of a proposal by the defendant, “ that all the hard brick will be received by you before December 1st, 1905,” accepted by the. plaintiff. If then before December first the defendant had tendered and the plaintiff had refused to receive the brick, it is clear that the plaintiff would have breached the contract and the defendant would have had a cause of action to recover damages therefor. The promises under ■ this contract were mutual. If the plaintiff was bound to receive, the defendant was bound to deliver. By the middle of November a large amount of the brick required had been delivered. The plaintiff some days prior to December first demanded the brick necessary to complete the construction of the seven houses he was erecting. The defendant.failed to deliver. The plaintiff, wrote that if for any reason the defendant could not deliver before said date he would take the brick thereafter at the price agreed on. The defendant not only failed to deliver before December first,, but refused to. [505] deliver thereafter unless the plaintiff would enter into a new written contract at an advanced price. This the plaintiff refused to do. The breach, then, occurred on December first, the date the plaintiff was required to receive and the defendant was required to deliver. Upon breach of a contract for the sale of merchandise at a fixed price, the general rule is that the measure of damages is the difference between the contract price and the market value at the time and place of delivery. (Stecker v. Weaver Coal & Coke Co., 116 App. Div. 772; Atlas Portland Cement Co. v. Hopper, Id. 445; Todd v. Gamble, 148 N. Y. 382.) There was a market value for brick on December 1, 1905. It was $11 per 1,000, and so continued until the twentieth of the month. Indeed, the defendant offered to deliver all the brick that plaintiff required at this price. The value subsequently rose, and when the plaintiff bought 243,000 brick at the end of December and the first of January, the price was $13.50 per 1,000. The recovery was upon that basis, namely, the difference between $13.50 arid $9.50 per 1,000, amounting to $850.50. The learned court applied the rule which obtains in actions for conversion of stock. It charged: “ If the defendant was then chargeable with a breach of its contract, and you find that fact, then the plaintiff was required within a reasonable time after the breach of the contract to go into the open market and buy the] brick at the best price he could; ” and submitted to the jury what was a reasonable time. It seems to us that the wrong measure of damage was applied, and that the true rule was, as stated supra, the difference between the contract price and the market value at the time and place of delivery. The determination will, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff stipulates to reduce the judgment to $364.50, with interest and costs. If so stipulated, the judgment will be modified accordingly and affirmed, without costs in this court to either party. Patterson, P. J., Laughlin and Scott, JJ., concurred.