Goepel v. Kurtz Action Co.

Page, J. (dissenting):

In my opinion the complaint was properly dismissed as to the second cause of action. The plaintiff was not a manufacturer of the goods contracted to be sold; hence to allow her to recover the difference between the sale price and the cost of manufacture would allow her to recover the damage that was suffered by the manufacturer and not by her. The plaintiff cannot recover for the commission which she would have received had the sale been completed, for that would have been a special damage, i. e., damage that naturally, but not necessarily, flowed from the breach of the contract, which must be specifically alleged and it must have been proved that the plaintiff’s agreement for the commission was known to the defendant at the time of the making of the sale contract, and hence within the contemplation of the parties. *696The plaintiff could not recover for the difference between the contract price and the market price because no evidence of the latter was given. I, therefore, am of opinion that the judgment should be affirmed.

Shearn, J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.