Smith & Rumery v. H. A. Otis Co.

Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error contends that there is evidence in the record suificient to entitle the plaintiff to substantial damages for the breach of the contract by defendant, first, for the 'difference between the contract price and the sum it cost plaintiff to make the pews, and, second, for special damages “arising from the delay on the building contract which Smith and Rumery were acting under.” The usual measure of damages for the breach of a contract for the sale of chattels by the seller is the difference between the contract price and the market value of the article at the time when and the place where it should have been delivered. The place of delivery under the terms of the contract was Chicago. Plaintiff offered no evidence as to the market value of the pews in Chicago at or about the time of the breach of the contract, nor any evidence that the pews could not then have been purchased in Chicago, or that the pews then had no market value in Chicago. We think that the' refusal of the trial court to award plaintiff more than a nominal sum for direct damages by reason of the breach of the contract may be sustained on the ground that plaintiff failed to prove either the market value of the pews in Chicago at the time of the breach of contract, or that the pews then had no market value in Chicago.

Defendant was informed before the contract was made that the pews were purchased for resale at Portland. In Louis Cook Mfg. Co. v. Randall, 62 Iowa, 244, it was held that in such a case the market price at the place of resale controlled in fixing the measure of damages. If the doctrine of that case be followed in this ease, the result will be the same. Plaintiff offered no evidence tending to show that the pews could not be purchased in Portland or that they had there no market value. It is only when the article sold cannot be purchased in any market at any price that the buyer may prove his actual loss in some other way. Even in cases where the article could not be purchased in any market at any price, it has never, to our knowledge, been held that on a breach of contract by the seller, the buyer could manufacture the article and recover of the seller the difference between the contract price and the cost of manufacture.

We find no evidence in the record to warrant or support an award of damages to plaintiff on account of the claim made against it by Thornes. His testimony was in substance as follows: “I had full control of the carpenter work and the finishing. * * * I had general oversight and control and the contracting for pews, windows, and all that work.” His testimony tends to show that whatever contract he made with plaintiff was made for the church, or the society which was building the church; that he was hut an employe of the church or society,, and therefore that he could have no valid claim to recover damag’es for any delay on the part of plaintiff in the performance of its contract with the church or society.

We think the trial court properly refused, on the evidence, to give to plaintiff' more than nominal damages, and the judgment is therefore affirmed.

Affirmed.