(dissenting): .
For several years prior to 1897 the plaintiff had the exclusive agency for the sale of hats manufactured by the defendant, known as “Knox” hats, in the city of Buffalo, N. Y., under an arrangement established by custom and by the course of dealing between the parties, by which the plaintiff was entitled to buy from the defendant such hats as he desired, at a price to be agreed upon ' at the time of each purchase, but upon the understanding that he would nor sell the same during the hat season, so called, for less than the regular retail price to be fixed by the defendant.
At the close of each season the plaintiff was at liberty to sell any hats then on hand at such price as he might see fit. The defendant agreed, in substance, that he would sell hats of his manufacture to no other dealer than the plaintiff in the city of Buffalo during the • continuance of such arrangement. Either party had the right to terminate the arrangement at will, but. during the continuance thereof it was contemplated that each party should discharge the obligations imposed thereby in. such manner as to promote and protect the interests of the other. There was an implied obligation upon the part of the plaintiff to use all reasonable - and proper-efforts to sell as many of the defendant’s hats as he could and not to in any manner influence customers desiring hats to purchase those manufactured by other parties, or to deter them from purchasing hats manufactured by the defendant
On the 19th day of May, 1895, the plaintiff signed a-writing which was, in part,, declaratory of the arrangement So existing between the parties, in the following words : “In consideration of securing the sole agency for the sale of the Knox hat at Buffalo,' in the State of New York, (I) hereby agree not to sell or allow to be sold from our stock or otherwise, any first quality silk hats containing the Knox die, for less than eight dollars eachnor any first quality stiff hats containing the Knox die, for less than five dollars each.”
Thereafter, and on the 22d day of September, 1896, the plaintiff, through a Mr. Stinemetz, a traveling salesman for the defendant, ordered sixty and one-half dozen hats, of which three and one-lialf dozen were to be delivered at once and the balance in February and March following. The order was sent by Mr. Stinemetz to the *153defendant, and very soon thereafter the three and one-half dozen hats were delivered to and paid for by the plaintiff, according to the terms of the order. .
On the 2d, day of November, 1896, the plaintiff, through Mr. Stinemetz, ordered thirty-eight dozen additional hats, of which three dozen were to be delivered at once and the remainder on the first day of April following. This order was also sent to the defendant by Mr. Stinemetz, and soon thereafter the three dozen hats were delivered to the plaintiff and were duly paid for by him.
In the month of December, 1896, the defendant elected to and did terminate the plaintiff’s right to act in the city of Buffalo as the ■exclusive vendor of hats manufactured by him, and • thereupon declined to deliver the remaining fifty-seven .dozen hats ordered in September, and the remaining thirty-five dozen hats ordered in November, and so notified the plaintiff.
The evidence tended to show, and the jury found, that the orders for the hats so undelivered had been accepted by the defendant, and that such orders and acceptance constituted a valid contract of purchase and sale between the parties. Evidence was also given which tended to show that the plaintiff, while acting as the sole vendor of the defendant’s hats, was guilty of conduct in respect thereto which justified the defendant in terminating the arrangement or agreement which existed between them, and in refusing to deliver the balance of the hats ordered. That question, however, was not presented to the jury for its determination. Neither party requested that it be submitted, and it is, therefore, not presented for review upon this appeal.
The theory of the plaintiff upon the trial, and as alleged in his complaint, was that the orders for hats given by him through Mr. Stinemetz, and their acceptance by the defendant, constituted a valid contract, and that the defendant became liable to the plaintiff for any damages sustained by reason of the defendant’s failure to deliver the hats ordered. The contention of the defendant was that the orders for the hats to be delivered in February, March and April were never accepted by the defendant, and that, therefore, he was under no obligation to deliver the same. That was the only question submitted to the jury, except the question of damages, and neither party asked to have any other question submitted or passed *154-upon. The jury by its verdict found that the defendant accepted lire orders,, became obligated to deliver to the plaintiff all the hats •called for thereby, and the evidence amply justifies such finding.
The rulings of the learned trial justice, in receiving and excluding •evidence bearing upon the question of damages, and whether or not the verdict rendered was excessive, present the only questions for ■review upon this appeal.
In the complaint no spécial damages are alleged or demanded. It -is simply stated that at certain specified times the plaintiff ordered hats from the defendant, to be delivered at a future time named; that the defendant accepted such orders, neglected and refused to .■■deliver the hats called for, and that by reason thereof the plaintiff ..sustained damages in an amount specified.. Under these allegations the plaintiff introduced in evidence the orders, and thus proved the purchase price of the hats in question. For the purpose of proving the damages which he claimed to have sustained by reason of their non-delivery, the plaintiff was permitted to show, over the defend.-.ant’s objection, the retail price of such hats in the city of Buffalo during the hat season of the year 1897, and it was insisted that the ■ difference between these two sums — the aggregate amount of the •.purchase price and' the aggregate amount of the retail price — was the measure of damages sustained by the plaintiff and which he was ■ entitled to recover, The plaintiff offered the evidence objected to upon that theory, and no other evidence was. given which would >form a basis for .a recovery. This class of evidence, and all of it, was objected to by the defendant, the objections were overruled, the evidence received, and exceptions duly taken. We think the • evidence was.improper and incompetent under the allegations of the ■ complaint, and that its reception by the learned trial justice was error,
' In the case of Parsons v. Sutton (66. N. Y. 92) the correct rule, -as we understand' it, is stated in the head note as follows : “ The measure of damages for breach of a contract to sell and deliver an -article of. merchandise at a time and place specified,- when the pur-chaser can go into the market and buy the article, is limited to the. difference in value between the contract price and the market price at the time and place of delivery. If there is no market, and "the article caiipbtibe had there with reasonable' diligence, and the -vendee has suffered .special damages because of, and which are the *155proximate and natural results of, the vendor’s failure, such damages may be recovered. The' special damage in such case must be alleged and set forth in the pleadings of the party.”
In Squier v. Gould (14 Wend. 159) it was held: “Where an action on the case is brought and the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, the plaintiff must state in his declaration the particular damage which he has sustained, or he will not be permitted to give evidence of it upon the trial.” (See, also, Vanderslice v. Newton, 4 N. Y. 130.)
In Bogert v. Burkhalter (2 Barb; 525) the head note is as follows : “ In an action to recover damages for the breach of a contract, if the damages do not necessarily arise from the breach complained of, so as to be implied by-law, the plaintiff must specify in his declaration the particular damage which he has sustained; or he will not be permitted to give evidence of it.”
It cannot be said that the reception of the evidence objected to was not prejudicial to the defendant.; in fact, it formed the only basis for a recovery. The plaintiff by his proof said, in substance; the defendant agreed to deliver to me ninety-two dozen hats for $2,685. The gross retail price of such hats in the city of. Buffalo, in the year 1897, amounted to $4,734. The difference between those sums is $2,052, and represents the amount of damages sustained, and the jury, by the charge of the court and by the entire conduct of the trial, were given to understand that ■ they were at liberty to find that such sum. represented the damages sustained by the plaintiff. They rendered a verdict for $1,317.74, more than fifty per cent of the contract price. The fact that they did not award a larger sum in no manner indicates that the verdict was not influenced by the improper evidence received. No proof was given on the part of the plaintiff showing, or tending to show, what the expense of selling the hats in question at retail would have been. The cost of insurance, the. cost of help and clerk hire, was not alluded to. No evidence was given to show or indicate what part, if any, of the retail price of the hats would have been uncollectible, although it does appear that such hats were often sold by the plaintiff upon credit.
It appears by the evidence of the plaintiff that he was able to *156and did procure for his trade, for the season of 1897, hats of as good quality as those manufactured by the defendant, at the same or less cost; hats which,sold as readily in the city of Buffalo; that during the season of 1897 he sold as many hats as ever before, and that his business was equally good or better. It appears that of every purchase of hats from the defendant, for the period of ten years prior to the time in question, a large number had been left over and remained unsold at the close of the hat season; that these were invariably sold for much less than the' regular retail price. It also appears that a considerable number of each purchase invariably ■remained undisposed of for years, and became of so little value that •they were given away by the plaintiff. No evidence, however, was given from which even the approximate number of hats purchased from the defendant, which would thus remain unsold or become worthless, could be determined.
Upon the evidence, it is difficult to see liow- the defendant was injuriously affected by the non-delivery of the hats in question. He had purchased from other manufacturers hats which he swears were equally as good and salable as those ordered from the defendant, and at the same price. He was enabled to purchase them in such quantities as he desired and sufficient for the purposes of his trade. Upon the sale of the hats which he purchased, he made the ■same profit that he would have made upon the sale of hats manu-. factored by the defendant. During the year 1897 his trade was as large, his business was as good as it ever had been ; yet, notwithstanding, through the medium of this action, he seeks to.double the business and profits of the year, and if the verdict of the jury, by which he was given as net profits upon the goods ordered from the defendant more than fifty per cent of the entire purchase price, shall stand, he will succeed.
We think the verdict was grossly excessive, and probably as the result of the improper evidence received.
The judgment and order appealed from should be reversed and a new trial ordered, because incompetent and improper evidence was received upon the question of the plaintiff’s damages, and also-because, in any event,, the verdict is excessive.
Judgment and order affirmed, with costs.