Chemung Iron & Steel Co. v. Smith & Hemenway, Inc. , 197 N.Y.S. 80 ( 1922 )

Finch, J.:

The action is brought to recover damages for the breach of certain contracts made between the plaintiff and the defendant for the purchase and sale of certain steel rods. Plaintiff alleges an anticipatory breach by the defendant, and the jury, by its finding, have sustained the plaintiff. The only question on this appeal arises from the measure of damages. Plaintiff s.eeks to allege five causes of action. In the first, second, fourth and fifth, plaintiff alleges a tender of a portion of the steel and its rejection by defendant, and then seeks to recover as its damage the difference, between what it sold this steel for and the contract price without showing that the steel sold was in accordance with the contract' between the plaintiff and the defendant. If plaintiff had relied only upon the anticipatory breach and had only sought the difference between the contract and market prices, it would not have been necessary for the plaintiff to have shown that it completed the steel in accordance with the contract specifications (Krauter v. Simonin, 274 Fed. Rep. 791), but it would have been entitled to recover the difference between the contract price and the market value of the steel. (Pers. Prop. Law, § 145, as added by Laws of 1911, chap. 571.) When, however, plaintiff did not adopt this measure of damage but sought to rely for its damage upon the sale of a portion of the steel and sought to prove" as its damage the difference between what it received from said sale of this steel so tendered and the contract price, it then became necessary for plaintiff to show that this steel was made in accordance with the specifications of the contract. (Pollen v. LeRoy, 30 N. Y. 549.)

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., Smith, Merrell and Greenbaum, JJ., concur.

Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.