I concur with Chief Justice Daxy, in .granting a new trial in this action, on the authority of Baker v. Drake.
The earlier cases for non-delivery of merchandise have made a marked distinction in the application of the rule of damages, between actions where the purchase price had been paid in advance, and those where it was to be paid on -delivery.
This distinction is recognized, but in no sense fully approved ■ as to the measure of damages, in the case last referred to.
The language of Judge Rapaxxo, in Baker v. Drake (53 N. Y. 211), plainly indicates the principle that is hereafter to govern the decision of cases of this character. He says, “ the question is," whether or not, under the circumstances of the case, the rule adopted by the court below (following Markham v. Jaudon) affords the plaintiff more than a just indemnity for the loss sustained. In a case where the loss of probable profits is claimed as an element of damage, if it be ever allowable to mulct a defendant for such a ■conjectural loss, its amount is a question of fact, and a finding in respect to it should be based on some evidence.”
And further, in commenting upon the case of Greening v. Wilkinson (1 C. & P. 625), he says, “ It falls short of sanctioning the doctrine that, as a fixed rule, the plaintiff is entitled .absolutely to recover the highest price prevailing at any time before the end of the trial, without any evidence showing it was even probable that he would have realized such price.”
No such evidence appears in this case, and without it, the .spirit and intent of the decision referred to evidently holds that such damages are speculative.
*109Whether or not the plaintiff would have retained the whiskey until the time it reached the market value of seventy-seven cents, and disposed of it at that opportune moment, is in this case a question of conjecture, and not of proof. That he might have done so does not meet the requirement of the rule above mentioned, or authorize the recovery of damages upon such a possibility.
I am for a reversal of the judgment, and a new trial, with costs to abide the event.