Ehrlich, J. The complaint contains a single cause of action, which is for damages, direct and consequential, claimed for the breach of a written contract.
Three elements of damage are alleged: First, refusal to accept or permit a delivery of 564 busts; second, refusal to pay one-half the cost of a model; and, third, as an item of special damage, $5.64 per day from February 27, 1886, to the date of the trial of the action, as the value of the use of the space in plaintiff’s factory, occupied by the 564 busts, in consequence of defendants’ wrongful refusal to accept the same.
Prior to the trial, an order for judgment on the pleadings had been made, covering the first two items of damages, the amount thereof had been paid, and the action continued as to the third item.
I am in favor of a reversal of the judgment appealed from, on the broad ground that the action is one for damages for breach of contract, and not for the agreed price of goods to be manufactured; and that the order for judgment is not an adjudication inconsistent with this construction, nor is defendant estopped or otherwise precluded from resisting, for this reason, the claim for storage.
The complaint distinctly alleges that defendants refused to accept or permit a delivery, and claims damages therefor; therefore it should be held that there was no delivery, either in fact or in law, without which the title could not pass. I think also that the learned court below erred in allowing evidence as to the cost or value of cartage, and the value of storage room in plaintiff’s factory, and that the latter error was not cured by the charge.
The judgment should be reversed, and a new trial granted, costs to abide event.
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