Opinion
January 11, 1907.
Joseph A. Arnold, for the appellant.
Woodson R. Oglesby, for the respondent.
The learned trial judge charged the jury that if they found for the plaintiff his measure of damage was the profit at which he could have sold the coal at retail at Mt. Vernon if it had arrived in contract time, viz., $1,200, plus the difference between the purchase price and the sum he received for the coal at retail, viz., $1,400, which would make a total of $2,800, which with interest would be $3,200. These were the figures given by the learned trial judge to the jury. They were within the evidence and were not objected to. The jury followed them and rendered a verdict for $3,200.
It will be seen that the learned trial judge made a mistake of $200 in totalling. This with interest from January 21st, 1903, to the trial day has to come off. The prospective or possible profit of $1,200 with interest has also to come off, for the general rule is that such profits are not allowable as an element of damage ( Saxe v. Penokee Lumber Co., 159 N.Y. 371) and this case is within such rule. Moreover, the coal was finally received and sold at retail, so that the plaintiff got the retail profit over the wholesale market price prevailing on the arrival of the coal. A recovery of the difference between the price he had paid and such subsequent wholesale market price would therefore make him whole, i.e., it would give him the amount of the fall in wholesale price, which he had lost by the failure to deliver in contract time, and by selling at retail he had already received his retail profit.
The rule of damage given to the jury in respect of the other item of $1,400, i.e., the difference between the purchase price and the sum realized by selling the coal at retail to the best advantage after its arrival, was erroneous, but the error is not open to the defendant's objection for it is in its favor; it lessens the damage. The true rule was the difference between the purchase price which had been paid by the plaintiff and the wholesale market price on the day the coal should have arrived. This latter was necessarily (and as the evidence shows) less than the retail price then prevailing — and the coal was all sold at retail without delay. The wholesale market was the harbor of New York, and the towing time from there to Mt. Vernon only a few hours.
It was not proven that the plaintiff had sold the coal in advance at retail for $15 a short ton, or any other price, for delivery at the time it was due under his contract of purchase of the defendant. Nor was the defendant informed that the purchase of it was being made to fulfill such advance retail sales, which was essential in order to make them the criterion of damage. Nor does the complaint plead such special damage, which was essential ( Parsons v. Sutton, 66 N.Y. 92; Sprout v. Newton, 48 Hun, 209).
The judgment should be reversed unless the plaintiff consent to reduce it by the sums of $200 and $1,200 with interest from January 21st, 1903, to the trial day, and a proportionate part of the extra allowance.
HIRSCHBERG, P.J., JENKS, HOOKER and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery in accordance with the opinion of GAYNOR, J., and extra allowance proportionately, in which case the judgment as modified and the order are affirmed, without costs of this appeal to either party.