The seller must use reasonable diligence to minimize damages. 78 C.J.S., Sales, s. 479(d), pp. 146-7; Bennett v. S. Blumenthal Co., Inc., 155 A. 68 (Conn. 1931); Atalah v. Wilson Lewith Machinery Corp., 200 F.2d 297 (4th Cir. 1952). There is also the question whether, in determining lost profits by ascertaining the difference between the contract price of the undelivered goods and what it could have cost to manufacture and deliver these goods, the cost should include overhead expenses and fixed charges reasonably applicable to the undelivered portion of the contract.
If the agreement had contained no provision for liquidated damages, the plaintiff's damages on the breach of the defendant's agreement to offer the car to it for repurchase would have been properly measured by the profits it would probably have made on a resale of the car. Kastner v. Beacon Oil Co., 114 Conn. 190, 193, 158 A. 214; Bennett v. Blumenthal Co., 113 Conn. 223, 230, 155 A. 68; see Marske v. Willard, 169 Ill. 276, 285, 48 N.E. 290. But what that profit might be was not capable of anticipation, particularly as the provision covered a period of six months after the sale; and the trial court might well have considered that, looking forward from the date of sale, $300 was not a sum clearly disproportionate to the probability of loss through the plaintiff's inability to have the car for resale. The words of the contract clearly express the intent of the parties that the sum is to be "liquidated damages"; and the factual situation is such that the trial court could reasonably conclude that those words fairly meant that, and not merely a penalty designed to compel the defendant not to make default.
This accords with the accepted rule. 3 Sutherland, Damages (4th Ed.) p. 2695; 2 Sedgwick, Damages (9th Ed.) 752, 614; Bennett v. Blumenthal Co., Inc., 113 Conn. 223, 229, 158 A. 68; United States v. Behan, 110 U.S. 338, 28 L.Ed. 168, 170, 4 Sup. Ct. 81. The appellant does not complain of this instruction, as far as it goes, but assigns error in the failure to charge, further, as requested, that in computing the cost there should be included "the compensation received during said period by the plaintiff for his services representing the time which it would have been necessary for him to have employed in the preparation of the Activator Plan for said months of May to December, 1934, inclusive, if the contract had been continued." As is apparent from the purport of the request and the citation to it of Grant v. New Departure Mfg. Co., 85 Conn. 421, 83 A. 212, the defendant thereby sought to invoke a doctrine applicable to actions seeking recovery for deprivation of a contract for personal services for a determinate period, as distinguished from one for the performance of specific work or the accomplishment of a specific purpose under which the contractor may eithe
The seller must use reasonable diligence to minimize damages. 78 C.J.S., Sales, s. 479 (d), pp. 146-7; Bennett v. S. Blumenthal Co., Inc., 155 A. 68 (Conn. 1931); Atalah v. Wilson Lewith Machinery Corp., 200 F.2d 297 (4th Cir. 1952). There is also the question whether, in determining lost profits by ascertaining the difference between the contract price of the undelivered goods and what it would have cost to manufacture and deliver these goods, the cost should include overhead expenses and fixed charges reasonably applicable to the undelivered portion of the contract.