The correspondence between the parties established an agreement by the defendant to purchase of the plaintiff certain iron or steel beams, to be used in the construction of a building in the city of. Hew York, at one dollar and eighty-five cents per 100 pounds on steamship dock, Hew York, specifications to be furnished by defendant. Parol evidence was introduced to determine' the amount contracted for, which the jury found to have been 500 tons. The plaintiff admits having sold 200 tons of the beams, with the permission and consent of the defendant, and this action was brought to recover damages for the defendant’s refusal to furnish specifications for, or to accept and pay for the remaining 300 tons.
The evidence introduced by the plaintiff .at the trial, though somewhat unsatisfactory, tended to establish that in January, 1906, he had ordered from certain manufacturers in Germany a large quantity of beams, to be made according to specifications to be furnished and to be paid for as manufactured. Upon making the contract with the defendant in May, 1906, he checked off the 500 tons called for by the contract against the amount he had ordered from the mills. In August, 1900, the defendant repudiated its contract, no specifications having been furnished, and this action was commenced in September following. There was álso evidence from which the jury might, and apparently did, find that the plaintiff made a bona fide effort to secure an order for the 300 tons which the defendant refused to take and finally succeeded in selling the same as part of a larger order to a firm in San Francisco, Cal. The 300 tons were delivered f. o. b. steamship Ant/wer'p, for which he received $10,200, or $900 less than the contract price with the defendant f. o. b. dock, Hew York. The jury found in favor of the plaintiff for $900. Judgment was entered thereon, the validity of which is attacked upon the ground that the measure of damage adopted was improper. *534The general rule is well settled that upon the breach of an executory contract for the sale of a chattel, the vendor has three remedies, viz.: To store the property for the vendee and sue for the purchase price; to sell it as agent for the vendee and recover any deficiency; or to keep the property and recover the difference between the contract price and the market value. ( Van Brocklen v. Smeallie, 140 N. Y. 70.) Where, however, the contract is for the sale of goods to be manufactured and it is broken by the vendee before the goods have been manufactured, this rule does not apply. Then the measure of damages is the difference between the cost of manufacture and delivery and the contract'price. (Hinckley v. Pittsburgh Steel Co., 121 U. S. 264; Roehm v. Horst, 178 id. 1; Todd v. Gamble, 148 N. Y. 382; Kelso v. Marshall, 24 App. Div. 128; Belle of Bourbon Co. v. Leffler, 87 id. 302; Lehmaier v. Standard Specialty & Tube Co., 123 id. 431; Page Cont. § 1591.) Much of defendant’s evidence was devoted to showing the market price for beams, but it is evident that in the present case the rule as to market price does not apply, for, while there may have been a recognized price per ton for beams, those contracted for were to be used in a particular building and were to be made according to specifications, which were never furnished, and it is apparent that the plaintiff could not have had them manufactured without the same. Under such circumstances the measure of plaintiff’s damage is plainly the value of his contract — that is, the contract price less the cost of fulfilling on his part.
Hinckley v. Pittsburgh Steel Co. (supra) was a case much like thg one before us. There, the plaintiff in error had agreed to purchase from the steel company a quantity of steel rails to be manufactured according to directions. Upon his refusal to perform, it was held that the company was not obliged to manufacture the rails and sell them at the market price, but could recover the contract price less the cost to manufacture.
In Roehm v. Horst (supra) it was said : “ If the vendor has to buy instead of to manufacture, the same principle prevails, and he may show what was the value of the contract by showing for what price he could have made sub-contracts, just as the cost of manufacture in the case of a manufacturer may be shown.”
It is suggested by the defendant that in the present case, since *535the beams were to be made according to specifications, the cost of production is entirely problematical. It appears, however, that such beams are made in certain sizes according to a standard basis and if sizes above or below the basis are desired, an extra charge is made.
The plaintiff, however, introduced evidence tending to show a reduction of his damage. He testified he had arranged to fill liis contract with the defendant from an order which he had given to a manufacturer in Germany and that he afterwards sold the 300 tons which defendant refused to take. This was competent evidence, although the sale was made after the commencement of the action (Rauscher v. Cronk, 3 N. Y. Supp. 470), and the profit which he made upon this sale should be deducted from his damage. If the sale had been made f. o. b. s. s. dock, Hew York and there was no profit realized on the sale, then I am inclined to think the judgment should be affirmed; but it was made f. o. b. steamship Antwerp, and it does not appear but that the plaintiff made as large a profit by such sale as he would have made had the defendant kept its contract. If so, only nominal damages could be recovered. It did not appear what it would have cost the plaintiff to transport the beams to Hew York, where, under the contract with the defendant, delivery was to be made. ' Having made the sale f. o. b. steamship Antwerp, at only $900 less than the contract price, plaintiff’s damage must have been less than $900, since he thus escaped paying the freight to Hew York and possibly the duty on the beams. It is not quite clear from the record whether the amount he received — $10,200 — was the net price after he had paid the duty or whether the duty \vas to be paid by the purchaser, though the former would seem to be the case.
In any view, therefore, it seems to me an improper measure of damage was adopted, and for that reason the determination of the Appellate Term and the judgment and order of the City Court must be reversed and a new trial ordered, with costs to appellant to abide event.
Houghton and Scott, JJ., concurred.