Windmuller v. Pope

107 N.Y. 674, 1 Silv. Ct. App. 550, 12 N.Y. St. Rep. 292

Opinion

The following is an extract from the opinion:

“We think no error is presented upon the record which requires a reversal of the judgment. The defendants having on the 12th of June, 1880, notified the plaintiffs that they would not receive the iron rails or pay for them, and having informed them on the next day that if they brought the iron to Rew York they would do so at their own peril, and advised them that they had better stop at once attempting to carry out the contract, so as to make the loss as small as possible, the plaintiffs were justified in treating the contract as broken by the defendant at that time, and were entitled to bring the action immediately for the breach, without tendering the delivery of the ñon, or awaiting the expiration of the period of performance fixed by the contract; nor could the defendants retract their renunciation of the contract after the plaintiffs had acted upon it and, by a sale of the iron to other parties, changed them position. (Dillon v. Anderson, 43 N. Y. 231; Howard v. Daly, 61 id. 362; Ferris v. Spooner, 102 id. 12; Hochster v. De La Tour, 2 El. & El. 678; Cort v. Ambergate, etc., Railway Co., 17 Ad. & El. 127 ; Crabtree v. Messermoth, 19 Ia. 179 ; Benjamin on Sales, §§ 567, 568.)

“ The ordinary rule of damages in an action by a vendor of goods and chattels, for a refusal by the vendee to accept and pay for them, is the difference between the contract-price and the market value of the property at the time and place of delivery. (Dana v. Fiedler, 12 N. Y. 40; Dustan v. McAndrew, 44 id. 72; Cahen v. Platt, 69 id. 348.) ”

Carlisle Norwood, Jr., and W. W. Niles, for appellants. Bernard Roelker and Cephas BraJnerd, for respondents.

Per Curiam

opinion for affirmance.

All concur.

Judgment affirmed.