I concur in a reversal of the judgment, but not in all of the grounds assigned therefor in the opinion of Mr. Justice McLaughlin.
*536The plaintiff was to manufacture or procure the manufacture of steel beams and channels according to specifications to be furnished by the defendant. The manufactured goods were to aggregate in weight 500 tons. The defendant furnished no specifications, but according to the evidence introduced on behalf of the plaintiff, authorized the plaintiff to dispose of 200 tons of the steel, which was done. The action is based upon evidence showing a total breach of the balance of thé contract by the defendant before the manufacture of the goods, as it appears that the defendant refused to furnish specifications by which the goods could be manufactured to fill the order. The facts present a case for the application of the rule that upon a total breach by a vendee of an executory contract to manufacture goods before the manufacture thereof, the measure of the vendor’s damages is the difference between the price agreed to be paid for the manufactured article by the vendee and the reasonable cost to the vendor of filling the order. (Belle of Bourbon Co. v. Leffler, 87 App. Div. 302, and cases cited.) On the first trial the plaintiff on this theory recovered a verdict of $1,260, which was reversed, I think erroneously, by the Appellate Term (103 N. Y. Supp. 103) on the ground that it did not appear that plaintiff had incurred any liability for the purchase or manufacture of the steel to fill the order. Prior to making the contract with the defendant the plaintiff had contracted for the purchase of 500 tons of steel to be manufactured, as directed, in Germany. The plaintiff thereafter made the contract with the defendant for the sale of the same quantity of manufactured steel as he had previously ordered in Germany. At the time of the breach of the contract by the defendant the plaintiff contemplated filling the order under his contract with the German mills, but that contract was in no way made a part of his contract with the defendant, and the "latter, therefore, was a stranger thereto. After the first trial of this case the plaintiff placed an order in San Francisco for the sale of the remaining 300 tons of manufactured steel which had not been furnished under his contract with the German mills.
On the last trial the plaintiff, having been debarred under the decision of the Appellate Term from recovering on his original theory, which, I think, was right, recovered on the theory that the defendant was liable for the difference between the contract *537price and the amount realized by plaintiff on the order placed in San Francisco since the commencement of this action, and that theory of damages is now to be approved as correct, in the main, with the exception merely that since, under plaintiff’s contract with the defendant, the manufactured goods were to be delivered free on hoard vessel in Antwerp, the freight for transportation across the ocean and the duties at this port, which plaintiff would have been obliged to pay had he been permitted to fill his contract with the defendant, were saved to him under his contract to sell in San Francisco, and should, therefore, have been added to the amount realized on that contract in diminution of his damages. The liability of the defendant was neither increased nor diminished by plaintiff’s contract with the German mills, which was not made with a view to fulfilling his contract with the defendant. FTor did the defendant contract with the plaintiff with reference to the latter’s foreign contract." The defendant, therefore, was neither entitled to any profits made by the plaintiff under his foreign contract nor liable for any daznages sustained thereunder. The plaintiff was under no obligation to the defendant, after a bi'each by the latter, to dispose of the steel which he had, previous to contracting with defendant, agreed to purchase in Gerznany, with a view to reducing the daznages. The plaintiff, so far as the defezzdant is concerned, could have canceled his contract with the German mills. That he saw fit, instead of canceling the contract, to place the order elsewhere is a matter which does not concern the defezzdant. I am of opinion, therefore, that the rule of damages applicable to the facts of this case entitles plaintiff to recover the difference between the price defendant agreed to pay and the reasonable cost of manufacture to fill the order, and that such daznages are neither to be augznented by losses nor dizninished by profits on disposing of the steel elsewlzez-e.
For these reasons, therefore, I concur in a reversal of the judgment.
Patterson, P. J., concurred.
Deterznination, judgznent and order reversed, new trial ordered, costs to appellant tó abide event.