Petigor v. Ward , 36 Misc. 816 ( 1901 )

MacLean, J.

In this action to recover damages for breach of contract, the plaintiff proved a written order by the defendants for a soda-water fountain, to be delivered in the month of January, at $1,100, to be paid in installments with reservation of title until payment of the price in full, his- own performance and defendants’ refusal to accept. While- “ the general rule for the meas-tire of damages, in the case of a breach by a vendee in the contract for the sale of an article of merchandise at a fixed price, is the difference between the contract price, and market value of the article, on the day and at the place of delivery ” (Todd v. Gamble, 148 N. Y. 382-384), its application is to those cases where a market value is shown. Such value the plaintiff did not prove, nor did he prove the absence of such value. “ To justify a departure from this general rule, the facts must take the ease out of the ordinary and, if there is no such standard as a market value, the measure of the plaintiff’s damage may be arrived at, in a ease like the present one, by ascertaining the difference between the contract price and the_ cost of production and delivery.” Todd v. Gamble, 148 N. Y. 382, 385. The plaintiff, however, proved a valid contract and its breach by the defendants, and though failing to prove actual loss was entitled to nominal damages. Devehdorf 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.” National Cash Register Co. v. Schmidt, 48 App. Div. 472, 474. Wherefore, as determined in that case, the judgment will be reversed and a new trial ordered, costs to appellant to abide the event, unless the defendants pay within twenty days the disbursements and fees now allowed by law, in which event the judgment will be modified by striking therefrom the award of costs, and as thus modified will be affirmed without costs of this appeal.

McAdam, P. J., and Scott, J., concur.

Judgment reversed and new trial ordered, costs to appellant to abide event unless defendants pay within twenty days the disbursements and fees allowed by law, in which event judgment modified, and as modified is affirmed, without costs.