THE NEW YORK SUPPLEMENT VOLUME 202 (207 App. Div. 411) ACUNTO v. SCHMIDT-DAUBER CO., Inc. (Supreme Court, Appellate Division, First Department. December 14, 1923.) 1. Damages 6—Uncertainty as to amount does not prevent award. Where breach of an agreement has brought about a loss, mere uncertainty of the amount of damages does not prevent its award. 2. Sales 417-Evidence held to warrant finding that goods could not be elsewhere purchased. In an action for seller's breach of contract to sell mahogany pianos of a specified quality, held, that the evidence would support a finding that pianos of the quality purchased could not be elsewhere secured. 3. Sales 418(15)—Loss of profits held measure of damages, there being no market in which goods obtainable. Where there is no market in which the commodity purchased can be obtained on seller's default, buyer can recover for loss of profits which would have accrued to him, had seller carried out his contract. Dowling, J., dissenting. Appeal from Supreme Court, New York County. Action by Stephen Acunto against the Schmidt-Dauber Company, Inc. From a judgment dismissing the complaint at the close of plaintiff's case, he appeals. Reversed, and new trial ordered. Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ. Boardman Wright, of New York City (Michael J. Joyce, of Brooklyn, on the brief), for appellant. Greenbaum, Wolff & Ernst, of New York City (Lawrence S. Greenbaum, of New York City, of counsel, and Jonas J. Shapiro, of New York City, on the brief), for respondent. MCAVOY, J. [1] It is a doctrine of the law, so firmly established that it would be useless now to question it, that mere uncertainty of the amount of damage does not prevent its award, if a breach of an agreement has brought about a loss. Wakeman v. Wheeler & Wilson Manufacturing Co., 101 N. Y. 205, 4 N. E. 264, 54 Am. Rep. 676; Delafield v. J. K. Armsby Co., 131 App. Div. 582, 116 N. Y. Supp. 71. Hence, where both breach and some ascertainable damage is found, the law's ideal of redress for injury ought to be sought within a proper adherence to fundamental legal principles. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 202 N.Y.S.-1 [2] The contract here was to deliver 50 mahogany pianos at the rate of 2 or more a week at specified prices for two different grades, known as "Standard" and "Auto de Luxe." After 5 pianos had been delivered and paid for under the contract terms, the defendant ceased performance and refused to make further deliveries. Although there is a claim in the answer that a strike of defendant's operatives was in progress, and that plaintiff because of this waived deliveries under the contract, no proof was had upon this assertion, as the complaint was dismissed, on plaintiff's proof, for failure to show damages according to the common rule of difference between the contracted payments and the purchase price of pianos of this type in the current market for this. sort of article. If there were a market in which pianos of the style and quality of the ones sold were customarily offered for purchase, none could gainsay the application of the rule. There was, however, competent proof here which placed the articles contracted for within a category which exempts the buyer, whose contract is unfulfilled, from the application of the doctrine of the rule. The exceptions are stated by Mr. Justice McLaughlin in Atlas Portland Cement Co. v. Hopper, 116 App. Div. 445, at page 449, 101 N. Y. Supp. 948, at page 950, as follows: This rule, however, is subject to exceptions when special damages may be recovered: (1) Where the article purchased is of a peculiar make or for a particular purpose, having either no market value or a value much greater to the purchaser than to the public generally; and (2) where the contract unfulfilled was to deliver goods which the seller knows are the subject of an agreement by his purchaser under the terms of which the latter must deliver these goods, for which he is to obtain an advance price. The evidence which tended to prove that there was no market for pianos of this type and grade, and that they were of a peculiar make, was such as warranted, if it were believed, these findings by the jury: That the plaintiff had been buying similar pianos from the defendant for over a year, and had built up a reputation among his customers because of their quality; that there was a difference in quality between defendant's pianos and others, the defendant's being of a higher quality; that plaintiff's customers would notice the difference between defendant's pianos and those of other makers; that the plaintiff, after repeatedly urging the defendant to carry out its contract, went to other dealers in an effort to buy. pianos, and found that there were none on the market; that plaintiff then went to the defendant, and asked where he could buy pianos of the same quality as the defendant's, and was told that it knew of no place where he could buy them; that the defendant's officer at that time told the plaintiff that it was not carrying out the contract, because it could make more money by selling its pianos at retail. It is true that there is testimony to the effect that the pianos were not sold under the defendant's trade-name, nor with any distinguishing mark which indicated their manufacture by defendant's factory, and that plaintiff had his own plate put upon the instruments by defendant, containing the legend "Vittoria," and that this might be done on other makers' pianos in similar fashion; but he testified that the Schmidt (202 N.Y.S.) Dauber piano was of a superior tone quality, and that the player action, which he might have procured elsewhere, was not the criterion of difference in quality. [3] The foregoing résumé of the proof as it stood when the complaint was dismissed, we believe, brings the plaintiff's cause within the exception to the common rule which allows proof, other than difference between contract and market price, where there is not a market for the particular commodity, and gives plaintiff the right to recover for the loss of profits which would have accrued to him had the contract been carried out by defendant. Ehrenworth v. George F. Stuhmer & Co., 229 N. Y. 210, 128 N. E. 108; Delafield v. J. K. Armsby Co., supra. There was a jury question here as to what damages plaintiff suffered because of defendant's breach of its contract, and it was error to dismiss. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. Order filed. CLARKE, P. J., and FINCH and MARTIN, JJ., concur. FARRINGTON v. FLEMMING, State Comptroller. (Supreme Court, Special Term, Albany County. November 10, 1923.) Detectives 3-Mandamus 164(2)-Appointment under competitive classifi. cation without examination illegal; return to alternative writ held insufficient. Under Const. art. 5, § 9, providing that appointments in the civil service shall be according to merit, to be ascertained by competitive examination, and in view of Civil Service Law, §§ 9, 12, 13, relating to classification of employees, and of the classification, in the competitive class for 14 years, of agents appointed by the comptroller to carry out the provisions of General Business Law, art. 7, relating to licensing private detec tives, an appointment to such position without examination was illegal, and conferred no right to the position, and the allegation of such appointment in the return to an alternative mandamus order to reinstate an agent who was appointed after an examination was insufficient, in view of Civil Service Law, § 22a, providing that, when a position in the competitive class is abolished, the persons holding such position shall be suspended in the inverse order of their appointment. In the matter of Edgar C. Farrington, petitioner for an alternative mandamus order against James W. Flemming, as Comptroller of the State of New York. On motion to strike out certain allegations in respondent's return to the order. Motion granted. Burnham & Frank, of Albany, for petitioner. NICHOLS, J. Motion to strike out certain allegations in the respondent's return to the alternative mandamus order. The petitioner obtained an alternative mandamus order from the Albany Special Term, held August 18, 1923, requiring the respondent, James W. Flemming, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |