Assuming, but not affirming, that the referee was correct in holding that there was a breach of contract upon the part of the defendant in his notifications to the plaintiff’s firm that it would not be able to supply the lumber contracted for during the season of 1890, and that its subsequent withdrawal of that notice was not sufficient, and assuming, also, that the letter of the defendant in regard to the value of the lumber at Tonawanda was sufficient evidence upon which to base a finding that its market value there was $33.50, there are still other questions in the case, sufficient, it seems to me, to call for a reversal of the judgment.
Upon a breach of contract for the sale and delivery of merchandise, the ordinary measure of damages is the difference between the contract and the market price at the time and place of delivery. Parsons v. Sutton, 66 N. Y. 92. But there is another rule of damages, which is that the party who suffers a breach of contract must so act as to make his damages as small as he reasonably can. Parsons v. Sutton, 66 N. Y. 92; Roberts v. White, 73 N. Y. 375; Wright v. Bank, 110 N. Y. 237, 18 N. E. 79.
The case of Parsons v. Sutton was one where there was a breach of contract for the sale and delivery of paper to be used as a frontispiece for a magazine, which was to be delivered on the 2d day of June, to be used in printing the July number of the magazine. The paper was not delivered at the time called for by the contract, and the court, in discussing it, said:
“There is no proof that such paper as this contract called for is not usually to be found in the market, or that it could not, in the small quantity required, be delivered in a few days by manufacturers. All defendants did was to go to dealers in paper a day or two after the 2d day of June, and try to buy paper like that which plaintiffs were to deliver; and they could find none. It does not appear that they made any further efforts. It does not appear that they could not find paper which would answer substantially the purpose. Xo reason is given why they did not try more than once to find the paper.”
While the case of Parsons v. Sutton was one where special damages were alleged, the rule announced was not based upon that fact. The principle “that the party who suffers from a breach of contract must so act as to make his damages as small as he reasonably can” applies just as much to cases where general as to cases where special damages are alleged; the principle is the same in both cases. The party injured is only entitled to recover such damages in any case as he necessarily sustains, and he does not necessarily sustain a damage that he could obviate by reasonable effort.
In this case there is no evidence that the plaintiff’s firm made any efforts or inquiries to procure other lumber in place of that called for by the contract, or to ascertain if such "lumber could be procured. I assume that they could not procure lumber of the kind in question, cut and sawed, at the defendant’s mill,—lumber known as “Penokee Lumber”; that, from the corresnondence between the parties, the plaintiff’s firm was warranted in believing that they had received all that there was to be had of that kind of lumber; and, therefore, that it would be useless for them to at*72tempt to obtain it. But that seems to me is not sufficient. There was no warranty or agreement upon the part of the defendant of the quality of lumber to be furnished, except that it should be as good in quality as that purchased the season before, from A. M. Dodge & Co. The plaintiff’s firm were not purchasing it for any special purpose, but for general sale in the market; and there is no pretense but that lumber cut from the same quality of pine, into the same dimensions mentioned in the contract, would have been just as salable in the market, and have answered the purposes of the plaintiff’s firm equally well, as though it had been cut at the defendant’s mill. This is not a case where the lumber is purchased for a special purpose-; as when a person is engaged in the construction of a house, and for the interior woodwork desires some particular kind of wood, which commends itselt to his taste, where another kind of wood, although equally durable, and equally fitted for the purpose, will not answer, the purchaser has a right to require the exact article he contracted for. In the contract in this case the essential things as to the lumber are not the mill where it is to be cut, but that it shall be of the specified cut and dimensions, and in quality as good as that'purchased the season before, of A. M. Dodge & Co. In their complaint, the plaintiff does not allege or claim any special damages because of the failure to receive lumber manufactured at the defendant’s mills. It is an ordinary complaint for damages for breach of contract for the sale and delivery of merchandise of a particular description, and must be governed by the ordinary rules governing such actions; and where the plaintiff’s firm could minimize the damages sustained by them by procuring lumber elsewhere, of a like character, and which would answer the same purpose as that contracted for, it would be its duty to do so.
The case is absolutely, barren of evidence of any effort or attempt whatever on the part of plaintiff’s firm to reduce its loss by the alleged breach of contract, or to procure lumber that would substantially comply with the contract. If it was the duty of the plaintiff's firm, in endeavoring to minimize its loss by reason of the defendant’s failure to fulfill the terms of the contract, to endeavor to procure lumber that would substantially comply with the terms of the contract, as was strongly intimated, if not directly held, by the cases I have cited, then it was competent and material for the defendant to show that such lumber could have been obtained at or about the contract price. The evidence in the case shows that there was in Tonawanda, at the time of the alleged breach of contract on the part of the defendant, lumber of the same grades and sizes as that specified in the contract in question, but better in quality, and more than sufficient in quality, to make up the 4,000,000 feet called for in the contract of the parties, and which would bring as much or more in the market as the product of defendant’s mills. The referee has found that navigation on the Erie Canal closed November 30, 1890; so that it would seem that there was ample time to procure this lumber at Tona*73wanda, and receive it at Albany, after either the defendant’s notification that it could not furnish the balance, or after the last shipment was received, November 12, 1890. The fact that it was of the grades and sizes, quality and amount, I have stated, is absolutely undisputed in the case. Such lumber belonged to the firm of A. M. Dodge & Co., and was at their docks in Tonawanda. The firm of A. M. Dodge & Co. and defendant occupied the same business office at Tonawanda, and the business there of both concerns, was conducted by the same office force.
The president and general manager of the defendant, being the same person who made the contract and carried on the correspondence in behalf of the defendant with plaintiff’s firm, was also one of the members of the firm of A. M. Dodge & Co., and had general charge of their business at Tonawanda. Upon the trial, he was asked if he would have sold that pine lumber to the plaintiff in this action at the price mentioned in the contract, and he was also asked if he sold such lumber in the open market at Tonawanda in the month of November, 1890. Both of these questions were objected to, as immaterial and improper. The objections were sustained, and the evidence excluded. I think those rulings were erroneous. It was competent for the defendant to show that the plaintiff’s firm could have obtained that lumber, which, as we have previously seen, was of the same kind and character as that called for in the contract, except that it was better in quality for the same price as that mentioned in the contract, which would reduce the damages to which they were entitled for breach of contract to a nominal sum.
The judgment should therefore be reversed, the referee discharged, and a new trial granted; costs to abide the event.
PUTNAM and LANDON, JJ., concur in result. PARKER, P. J., dissents.