Opinion
June, 1907.
Benjamin F. Edsall (Isaac L. Miller, of counsel), for appellant.
Walter J. Rosenstein, for respondent.
The plaintiff, a builder, sued the defendant brick company for damages for breach of contract. The contract arose on the proposal of defendant and the plaintiff's acceptance. In substance it was, as far as material: "We propose to furnish you all the mason's materials required for the construction of seven houses on the south side of 34th Street one hundred feet west of Amsterdam Avenue this City, all to be delivered at the following prices and conditions. Hard brick at the market price guaranteed not to exceed $9.50 per thousand, it being understood that you will require about three million to complete the operation and that all the hard brick will be received by you before December 1st 1905." Plaintiff, in the construction of his buildings, received close to 2,000,000 of brick. Toward the end of November, plaintiff in writing demanded of defendant sufficient brick to complete his buildings stating that, if defendant was not ready to deliver that quantity at that time, he expected them to deliver brick after December first at contract price of nine dollars and fifty cents per 1,000. Defendant replied that he would be treated properly. On December first there were required to finish the buildings about 300,000 brick. Defendant's representative told plaintiff that, if they furnished him any more brick after December first, he would have to sign a new contract to pay eleven dollars per 1,000. Plaintiff refused. After that date, defendant furnished to plaintiff 54,000 brick, for which he had to pay eleven dollars per 1,000. Plaintiff, in order to complete his buildings, had to go into the open market and purchase 243,000 brick at thirteen dollars per 1,000. He sued defendant for three dollars and fifty cents per 1,000 for the 243,000, being the difference between nine dollars and fifty cents, the contract price, and thirteen dollars, which he had to pay, and recovered a verdict for $850.50. The defendant claimed that it was ready to deliver all of the brick necessary to complete the buildings before December first, but plaintiff refused to accept. This and many other questions of fact were submitted to the jury, and their verdict resolved them in favor of the plaintiff. It was proven that the price of brick in the open market, at the time that plaintiff purchased the 243,000, was thirteen dollars per 1,000. The principal contention arose over the construction of the contract, defendant claiming that the breach occurred on December first, and that damages should be measured by the difference between the contract price and the market price at that time, and plaintiff claiming that defendant was bound to supply him with sufficient brick to complete the buildings at nine dollars and fifty cents without regard to December first; that that date was important only as fixing the time by which the plaintiff was required to receive them if defendant delivered them; that, defendant not having delivered them, plaintiff had to go into the open market and purchase what was necessary to complete the buildings and that the rule of damages was the difference between the contract price and what he paid. We think the plaintiff's construction the correct one. There was nothing ambiguous or uncertain about this language: "We propose to furnish you all the mason's materials required for the construction of seven houses * * * all to be delivered at the following prices * * *. Hard brick * * * guaranteed not to exceed $9.50 per thousand." The hard brick was to be received by December first, but it could not be received if defendant did not furnish it. All questions of fact were submitted to the jury and the defendant's contention that there were errors of law is based on his mistaken theory of the case.
The judgment should be affirmed, with costs.
Present: GILDERSLEEVE, FITZGERALD and GOFF, JJ.
Judgment affirmed, with costs.