The opinion of the court was delivered by
Pierpoint, J.This is an action of assumpsit, brought to recover damages sustained by the plaintiff, in consequence of the defendant neglecting to transport a quantity of peas from Vercheres, in Canada, to New York, as he had contracted to do.
The case was referred, and the questions now before this court arise on the report of the referee.
The first question is, as to the admissibility of the testimony of the plaintiff to prove the market price of peas in New York, on the 10th day of December, 1855, being the time, as the report shows, when the peas should have been delivered there.
The plaintiff testified, that he could have sold the peas in New York, at the time when they should have been delivered there, at one dollar and twenty-eight cents per bushel.
On his cross-examination he testified, that during that season he was engaged in the produce business in Albany and New York; and was once in New York during that period, and obtained his information as to the price of peas at the time from those with whom he had business relations in New York.
This testimony was admitted without objection, and no question raised as to its admissibility, until the argument of the case.
We think the objection was taken too late, even if well founded. A party cannot allow testimony to be introduced without objection, thereby waiving his right to object, and then, after the testimony is closed, and the case being argued, insist upon its exclusion.
But we think the testimony admissible. The witness was then dealing in produce in New York, and dealing in the very article the price of which was in question, and may well be supposed to have *95had a knowledge of the value of an article, in which he was dealing, in the market to which he was sending it for sale; his knowledge of its precise value at the time, he learned from his correspondents. A knowledge of the market value of any article is almost always to be obtained from others. There are but few whose individual operations are sufficiently extensive to determine the market value of the articles in which they deal. As a general rule, the market value of any particular article, at a given time, is determined by the dealings of many different individuals in such articles, and a knowledge thereof can only be obtained by information from others.
We think a person possessing such information as to the value of an article in market, as the witness in this case had, is competent to testify to that value.
What weight the testimony in* this case was entitled to, was for the referee to determine.
The report further shows that the defendant transported the peas as far as Burlington, and failing to complete his contract, and refusing to deliver the property to the plaintiff, the latter sued out a writ of replevin, and took the peas, sent them to Boston, and as the referee finds, disposed of them in a judicious manner, and for a price equal to what could have been realized for them if they had been sold in New York at the same time.
The referee finds that the value of the peas in New York on the 10th day of December, when they should have been delivered, was five hundred and fifty-eight dollars and sixty cents more than the plaintiff received for them in Boston, and that he paid for transportation sixty-seven dollars and twenty-five cents more than, by his contract with the defendant, he was to pay for delivering the property in New York.
These sums were disallowed by the court below; and it is now for this court to determine whether or not the plaintiff is entitled to recover for them.
It is insisted, on the part of the defendant, that the rule of damages, based on the value of the peas in New York, at the time of the delivery, is too remote and contingent to form the basis of a recovery.
The contract having been violated, and the plaintiffs right of *96recovery established, the question arises, by what criterion are the damages to be determined. I can conceive of no better rule than that the amount which the plaintiff would have received for the property if the contract had been kept, is the measure of damages if the contract is broken.
And in ascertaining this amount, we are to take into consideration such benefits as grow out of the contract itself, as the direct, immediate or natural result of its performance, such as the parties may reasonably be supposed to have contemplated, at the time of entering into the contract, as the result; not such as are merely speculative, nor such as possibly might accrue on the happening of some other contingency, by which the party might be enabled to enter into some other independent contract or speculation, from which profits might or might not ensue; such would be too remote or contingent to be taken into the account.
To apply this rule to the present case : the plaintiff is a dealer in produce, and in making this contract for the transportation of this property to New York, what would the defendant naturally understand his object to be ? To obtain its value in New York on its arrival of course ; and the defendant never could have contemplated a rule of damages more favorable to himself, if he failed to perform his contract, than that he should pay the plaintiff what he would have received for the property if it had been delivered in New York, according to the contract. That is the extent to which the plaintiff has been injured. And it is not a remote or contingent injury, but a direct and immediate one, resulting naturally from the breach of the contract. Indeed it would be difficult to fix upon a more certain, definite and easily established criterion by which to determine the damages in a case like the present, than the value of the property in New York.
The law seems to be well settled, that in actions brought to recover damages for the breach of contracts to transport goods to a particular place, or for the sale and delivery of chattels, the rule .of damages is the value of the goods at the place of delivery.
And in this case the plaintiff having been compelled, by the neglect of the defendant, to take the property at Burlington, and having disposed of it to the best advantage as stated in the report, and having given the -defendant the full benefit of all he received *97for it, is clearly entitled to recover the difference between what he so obtained in Boston and what he would have received for it in New York, and the additional expense of transportation, with the interest thereon.
The judgment of the county court is reversed, and judgment rendered on the report for the amount found due by the referee, and interest.