Low v. Craig

Opinion by

W. W. Porter,, J.,

The defendants bought from the plaintiffs in England certain plants of particular species, quality and condition. They were selected by tbe defendants themselves and the price agreed upon. The defendants claim that, pending the arrival of the plants in America, they sold a quantity of them to third parties at a considerable profit; that when the plants arrived they were not those selected but worthless plants ; and that the purchaser refused to take them whereby the defendants lost their profit. They now seek to defalk this profit. The court below instructed the jury that the alleged profit was not a proper set-off. This alone is assigned for error.

Ordinarily, loss of profit is not damage for which recovery can be had, but the appellant here invokes the rule that when a purchaser of an article, which cannot be obtained in the general market, sells to a third party at a profit, the profit is the measure of damage between the original buyer and seller on a failure to deliver. This rule cannot be applied, when the goods are shown by testimony to be obtainable in the market, and to have some market value at the place of delivery, or where the terms of the contract of resale are not disclosed with completeness. Both of these objections to the application of the rale appear to exist in the present case as shown by the abstract of testimony with which we have been furnished, and lead us to affirm the ruling of the trial judge in excluding the alleged loss of profit from the consideration of the jury.

Judgment affirmed.