This action is brought to recover damages for a breach of the same contract which was the subject of the action in Fenn v. Dryfoos (69 App. Div. 112), both cases having been practically tried and argued together. The evidence in this case, except so far as it relates to the question of damages, is precisely the same as in the other case. The construction which we have placed upon the contract and the evidence given of the breach, therefore, controls the disposition to be made of the question presented in this case, and under such ruling a question of fact was presented upon the subject of the breach of the contract for determination by the jury.
This conclusion results in the reversal of this judgment. But we are also of opinion that the question of damages sustained under the proof also became a question of fact for the jury, and that it was error for the court to assess such damages. Upon this subject the evidence of the plaintiffs tended to establish that the profit which they would have made had' the contract been fulfilled was $1.47 for the black skirts and $1.10 for the colored skirts. It was testified by the defendant that the plaintiffs stated to him that their profit on each skirt under the contract would be twenty-five cents. The court directed a verdict for $3,537 as the amount of damage sustained after deducting the $1,000 which was deposited by the defendant as a guaranty of good faith in the performance of the contract.
"W e are utterly unable, from the figures which appear in the testimony, to see how this particular sum was arrived at by the court, •but it is evident that the court adopted the testimony of the plaintiff as to the amount of the profit he would make upon the respective skirts, as it is only by adopting such sum that it is possible to approximate the amount of damages awarded.
The plaintiff was not only an interested party, but Uhl’s testimony was that the plaintiff stated to him that he only made twenty-five cents profit upon the skirts, and the plaintiff did not deny that he made such statement, but said that he could not remember whether he made it or not. It is perfectly clear, therefore, that the jury would have had the right to find that, instead of making a *120profit of one dollar and ten cents and one; dollar and forty-seven cents upon the skirts respectively, the plaintiff in fact only made a profit of twenty-five cents on each skirt. And if' they so found, the award of damages would be reduced in a very substantial amount,. Aside from this, however, the. provision of the contract did not obligate the defendant to take the manufactured black skirts. In this respect the contract is in the alternative to take 1,500 black skirts or 5,000 yards of black silk, and. the plaintiff states that he could not remember whether or not he stated to Uhl that his profit was six cents upon each yard of silk. It is clear, therefore, that the profit which plaintiff testified he would make upon each skirt did not, so far as the black silk skirts were concerned, furnish the sole basis for estimating damages.
Ho more damages'could 'be recovered by the plaintiff than the lowest sum which the plaintiff would receive as profit if the contract •had been fulfilled in any form which answered its .terms. The proof as to what would have been the profit if black silk, instead of skirts, bad been ordered by the defendant is very meager ; but it is plain that the price of the silk, if taken by the ..yard, was a determinate sum, and the ■ profit thereon different from what it would have'been if manufactured into skirts. In no.view, therefore, could the court determine this question as matter of law.
■ We also think that the defendant was entitled to cross-examine the plaintiffs respecting their ability and readiness to fulfill the terms of the contract. Such testimony upon the objection of the plaintiff was excluded. The court announced the correct measure of damages, that the plaintiff was entitled to recover the difference between the contract price and the actual cost of manufacturing and delivering the goods for which the contract provided. (Masterton v. Mayor, etc., of Brooklyn, 7 Hill, 61.)
For these reasons, we think, the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Yak Brunt, P. J., Patterson, Ingraham, and Laughlin, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.