Universal Steel Export Co. v. N. & G. Taylor Co.

Clarke, P. J.: This action is to recover damages for breach of certain contracts for the purchase and sale of tin plate. The complaint alleges three causes of action, each predicated upon a separate contract. The contracts sued upon in the first and second causes of action concededly were entered into and partial deliveries were made under the first one. The defendant contended that the plaintiff was in default in furnishing specifications and certain permits; that plaintiff received all the goods it reasonably "was entitled to under existing business conditions and that plaintiff was entitled to certain credits in paying for the goods. These questions were all passed upon by the jury as questions of fact, and it cannot be said that the verdict was against the weight of the evidence. The third cause of action alleged a contract dated September 3, 1919, whereby the defendant sold to the plaintiff 25,000 boxes of tin plate at seven dollars a box f. o. b. Pittsburgh, and the complaint alleged that deliveries were to be made on or about December 31, 1919. No deliveries were made under this contract, and there was a sharp issue as to whether the same was not canceled by the plaintiff. We do not pass upon this point since there must be a new trial on this cause of action for failure of proof as to the amount of damages. The complaint alleged a contract whereby deliveries were to be made on or about December 31, 1919. The plaintiff, however, [310] introduced evidence of market value from July 15 to August 7, 1920. While there was testimony from which the jury might have found that there was an extension of time for delivery under the contract, no such modification of the contract was pleaded, and no motion was made to amend the pleading to conform to the proof. Plaintiff furnished no proof of any market value during the month of December, 1919. The plaintiff claims damages made up of the difference between the contract price of $7.50, it being conceded that fifty cents a box should be added to the f. o. b. price of $7 to cover freight, and the market price of $12, which was what its witnesses testified the market price was between July 15 and August 7, 1920. At this rate the plaintiff’s damage would have been $112,500, but as it claimed only $53,500 in the complaint it was limited to this amount, which the jury gave in full. It claims to have shown the market value on January 3, 1920, of $8.50 a box upon which the calculation of the damages would have been at $25,000, and the market value on January twentieth of $9 a box, which would have made the damages $37,500. Neither of these prices would have justified the claim made nor the verdict rendered, and neither of them nor the price which they now claim and which the jury evidently accepted of $12 a box, could have been recovered under the pleading as it stood without amendment. The defendant asked the court to charge: “ That there is no proof of any market price of tin plate at any place on the 31st day of December, 1919, and that without such proof no recovery can be had on the alleged cause of action, being on the alleged contract of September 3, 1919.” It also asked: “ That under the pleadings the plaintiff can recover on the alleged third cause of action, being the alleged contract of September 3,1919, only the difference between the contract price and the market value on the 31st day of December, 1919.” Both these requests were refused. It seems to me that the defendant was entitled to have these requests charged and that refusal thereof was reversible error. The judgment appealed from should be affirmed as to the first two causes of action, and in other respects reversed, and a severance should be had as to the third cause of action, and a new trial thereof ordered, with costs to the appellant to abide the event. Merrill and Finch, JJ., concur; Smith J., dissents in part.