Albert Gas Fixture Co. v. Kabat

109 N.Y.S. 737

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 18, 1908
• Status: Published

Opinion

DAYTON, J.

The plaintiff claims to have sustained $300 damages for failure of defendant to deliver certain wire under a contract at an agreed price, which failure made it necessary for it to purchase the said wire in the open market at an additional cost aggregating the above sum. The defendant denies the breach, alleges a rescission and cancellation, and pleads willingness to perform. The learned trial justice determined the issues in the plaintiff’s favor, and rendered judgment for $200, the amount demanded in the complaint, with $22 costs.

Under the established rule the plaintiff is entitled to recover the difference between the contract price and what the wire actually cost it in the open market. But that cost must be established by satisfactory and convincing evidence. Inferential or speculative testimony is not sufficient. The plaintiff testified to his counsel, who asked:

“You had to pay 75 per cent, more for the goods in the open market? A. Yes, sir.”

This is the only evidence in the record that he had ever bought any wire in place of that which he contracted to buy from the defendant. He was asked:

“Did you buy any No. 16 and No. 18 new code wire during the months of October, November, and December, outside of the wire you agreed to buy from Kabat?”

To this he answered in the affirmative, stating that he bought about $800 or $900 worth, paying different prices therefor—$9, $8.50, $8.75. “The bills will show about nine different prices.” He further stated that in the months of October, November, and December (the contract having been dated October 13th, to be completed within 60 days) the price of wire advanced from 40 to 75 per cent., and at another time he stated that it advanced 75 per cent. On redirect examination he stated to his counsel that the market price of No. 18 code wire was between $7 and $8, and the market price of No. 15 code wire was $9. His witness Goodfarb stated that the market price of No. 16 wire was $8.50 per 1,000 feet, and of No. 18 $7.50 per 1,000 feet.

It is difficult to see that a right method of arriving at the amount due can be found in this evidence. Plaintiff’s counsel contends that, however the amount was reached, the court could not have awarded a less sum, and therefore the judgment should stand. If the plaintiff was entitled to any recovery, he was entitled to a definitely ascertainable sum; and if he was compelled to buy wire in the open market he should have shown how much of each kind he bought and what each lot cost. He cannot bind the defendant by indefinite testimony, which can only furnish a basis for speculation or conjecture, and not for proper computation.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.