I concur in the opinion of the court except as to that part which deals with the measure of damages treated under Eight, c, and as to that point, I concur in the dissent of MR. JUSTICE GAGER.
Measuring the damages by the cost of copper purchased on a fast-rising market, two to three months after defendant's breach in delivery, emphasizes the injustice, in this case, of the method of measuring the damages adopted by the majority opinion. I have not been able to find a reported instance where such a measure of damages has been adopted under substantially like circumstances. The opinion of the majority proceeds upon the theory that this measure is as if on an accounting, rather than upon a claim for damages for breach in delivery.
In addition, I think the plaintiff by its conduct waived any damages for delay in returning this scrap. It accepted the scrap without objection and without claim for damage for delay. It presented, prior to this action, a bill covering in greatest detail its entire claim, and this bill corresponded with its case as presented, and did not include reference to a claim for damages for delay in delivery of scrap. This item the trial court found to be $18,547.56, over one tenth of the judgment rendered. It began this action and continued it down to August 29th, 1918, without making claim in the pleadings or elsewhere for damages for delay in returning this scrap. It made this claim for the first time August 29th, 1918, in its substituted complaint. The record would seem to justify the defendant in its claim that the plaintiff never intended to make this claim at or prior to the institution of this action. *Page 346