Action No. 2. *Page 542 This action was tried at the same time and before the same referee as another action between the same parties, referred to as action No. 1. The second cause of action in action No. 1 was to recover for malt which the plaintiff claims to have actually delivered to the defendant under contract two. Under this contract the plaintiff was to manufacture and deliver 75,000 bushels of malt. It claims to have delivered about 11,000 bushels, and this action is brought to recover the damages arising out of defendant's refusal to accept the remainder of about 64,000 bushels. The questions relating to contract two which are common to both actions have been discussed in the opinion written in action No. 1, and that discussion need not be repeated here.
The complaint in this action was dismissed upon the grounds: 1. That the said contract (two) was not binding upon the defendant for the reason that Herman Bartels, its president, was not authorized to make it. 2. That the plaintiff had suffered no damages. The first of these grounds is disposed of in action No. 1, and we *Page 544 shall, therefore, confine ourselves to a consideration of the second.
Contract two was made in September, 1904. The order specified that the malt was to be shipped between November 1, 1904, and November 1, 1905, and it provided that "shipping directions will be given monthly." The acceptance was upon the understanding that the purchaser would "take delivery of a proportionate part each month or about that." Deliveries under this contract were commenced in December, 1904, and continued until March, 1905, when nine carloads had been delivered. On April 18, 1905, the defendant notified the plaintiff "Please do not ship any more malt until further notice, we are filled up." After that the defendant gave no further shipping instructions, although requested by the plaintiff to do so, and on November 1, 1905, there was more than 60,000 bushels of malt which remained undelivered. The referee found that the plaintiff, at all times from September, 1904, to November, 1905, "had malt in its possession of the quality called for by the second order or contract (contract two), in quantities sufficient to fulfill the terms of the contract, and fit and ready for delivery." He also found that between these dates the plaintiff notified the defendant that it had malt ready to deliver under said order, and that defendant did not at any time after said order to stop shipments notify the plaintiff again to begin shipments or to deliver the balance of the malt due under said second contract. He further found that between said dates the plaintiff was at all times "ready and willing to perform said agreement on plaintiff's part." We think the defendant was clearly in default. The subject-matter of the contract was such that it was not necessary for the plaintiff to make a physical tender. Shipments were to be made, moreover, according to directions from defendant, and when it refused to give such directions after request by the plaintiff the breach was complete. *Page 545
The breach of the contract having been established, the plaintiff is entitled to recover at least nominal damages. Whether it can make out a case for substantial damages depends upon conditions which are not satisfactorily placed before us by the present record. If the defendant is correct in its contention that this is a contract for the sale and delivery of goods for which there is a recognized market, and that the market price was at all times after the breach higher than the contract price, the plaintiff's claim to substantial damages must fail; but if the contract was for the manufacture and sale of an article, not inesse, sold only upon order at specified seasons of the year and for which there is no general and certain market, the plaintiff would be entitled to such substantial damages as it could prove. The usual measure of damages in such a case is the contract price, less the cost of production. (Todd v. Gamble, 148 N.Y. 382;Dillon v. Anderson, 43 N.Y. 231, 237.) Since there must be a new trial, we shall not assume to decide in advance into which of these two classes the evidence may place this action.
The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, CHASE and COLLIN, JJ., concur.
Judgment reversed, etc.