Opinion
March Term, 1900.
William L. Perkins, for the appellant.
Herman Vogel, for the respondent.
As the justice of the Municipal Court dismissed the complaint on the merits, it must be assumed that he found all the facts necessary to sustain the judgment which any fair view of the evidence would warrant. Accepting the testimony in behalf of the defendant as true, the transaction between the parties may be briefly stated: The defendant agreed to purchase a cash register from the plaintiff, for which he was to pay three hundred dollars in all, thirty dollars cash on delivery and the balance by giving notes of twenty-five dollars each, payable monthly. The contract contained a provision that the title to the said cash register should not pass until the purchase price or any judgment for all or any part of the same was paid in full, and that the cash register should remain the property of the vendor until that time. The contract also contained these clauses: "It is expressly agreed that this order shall not be countermanded. Should there be any failure to make said cash payment, or to execute said notes for deferred payments, it is agreed that the full amount of the purchase price shall at once become due and payable." This order was signed by the defendant on June 8, 1899. On June 20, 1899, the defendant notified the plaintiff corporation that it would be impossible for him to carry out the contract. On the twenty-fourth of the following month the register was taken to the defendant's place of business by the agents of the plaintiff corporation. The defendant testifies that he told them he did not want the machine, having countermanded the order, and sent it back by an expressman who had brought it there previously. His testimony, if believed, justified a finding by the trial court that the defendant refused to carry out his contract to accept and pay for the article ordered. He, therefore, became liable in damages for non-acceptance, under the rule that when a vendor has not transferred to the buyer the property in the goods which are the subject of the contract, the vendor's only right of action against the buyer is to recover damages for his refusal to accept the thing sold. (Benj. Sales [7th Am. ed.], § 758.) The measure of damages under such circumstances is the difference between the contract price and the market value of the article at the time and place of delivery. ( Todd v. Gamble, 148 N.Y. 382, 384; Kelso v. Marshall, 24 App. Div. 128.)
In the present case there was no proof of any difference between the contract price and the market value of the article sold. Indeed, one of the witnesses called in behalf of the plaintiff corporation gave evidence to the effect that the value of the cash register, which was the subject of the contract between the parties, on July 24, 1899, the day of delivery, was $300, which was the exact price that the defendant agreed to pay for it. It is plain from the context that, although he did not use the term market value, he was speaking of the salable value of such a register in Brooklyn. This testimony, we think, negatived any possible inference that the plaintiff had incurred any actual loss whatever by reason of the defendant's breach of contract. It still held the title to the cash register, and could obtain as much for it as the defendant had agreed to pay. Nevertheless, under the authorities, the plaintiff was entitled to nominal damages for the defendant's breach of his contract. ( Devendorf v. Wert, 42 Barb. 227.) Ordinarily a judgment will not be reversed for error in this respect, unless a reversal is necessary in order to give to the plaintiff the costs which an award of nominal damages would have carried with it. ( McConihe v. The New York Erie R.R. Co., 20 N.Y. 495; Ellsler v. Brooks, 54 N.Y. Super. Ct. 73.) If the plaintiff here had recovered the nominal damages to which it was entitled, it would also have recovered as matter of right "the disbursements now allowed by law, and also the prospective charges for docketing judgment in the county clerk's office, the fee of the county clerk for issuing an execution and filing certificate of satisfaction, and the sheriff's fee for receiving and returning one execution thereon." (N.Y. City Consol. Act, Laws of 1882, chap. 410, § 1420, as amd. by Laws of 1894, chap. 750, made applicable to the Municipal Court of the city of New York by section 1369 of the Greater New York charter, Laws of 1897, chap. 378.) Unless the defendant pays said disbursements and fees within twenty days, the judgment will be reversed and a new trial ordered, costs to abide the event. If such payment is made, the judgment will be modified by striking out the award of costs to the defendant, and as thus modified will be affirmed, without costs of this appeal.
All concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, unless the defendant, within twenty days, pays the plaintiff's disbursements and fees as prescribed in section 1420 of the New York City Consolidation Act. If such payment is made, the judgment will be modified by striking out the award of costs to the defendant, and as thus modified affirmed, without costs of this appeal.