#### CHAZY MARBLE LIME CO. v. DEELY et al.

(Supreme Court, Appellate Division, Third Department.

November 11, 1903.)

1. Attachment—Unliquidated Damages—Affidavits—Sufficiency.

Where an attachment is sought in an action to recover unliquidated damages, the affidavits must contain sufficient proof to enable the court to say prima facie that damages to the amount claimed have been sustained and are recoverable.

2. Same—Contract of Sale—Breach—Damages.

Where, in an action for breach of a contract to sell and deliver lime, affidavits in support of an attachment did not charge that lime of equal quality to that sold could not have been obtained from other dealers, and plaintiff’s contracts been fulfilled with lime so obtained, a statement that plaintiff had sold the lime contracted to be delivered at an advance, and by reason of defendant’s breach of contract plaintiff had lost $30,000 in profits, was insufficient to sustain an attachment, as not proving the damages alleged to have been sustained.

Appeal from Special Term, Clinton County.

Action by the Chazy Marble Lime Company against Martine Deely and others. From an order denying a motion to vacate an attachment, defendants appeal. Reversed.

The action is brought to recover damages for a breach of contract. In the contract the defendants agreed to manufacture and deliver for a period of five years from February 20, 1901, all the 'magnesia lime of a certain grade and quality that could be produced from four kilns, and to be produced from the best rock and stone taken from the defendants’ quarry; shipments to be made as and when requested by the plaintiff, but not to exceed on the average 35 tons per day. The plaintiff agreed to buy and pay for the lime when delivered in the amount of at least 10 tons per day, and had the right to call for as much as 35 tons per day during the life of the contract, and also for a renewal period of five years if the renewal option in said contract was exercised. The complaint recites the refusal of the defendants to perform their contract, the expenditure of large sums of money and valuable time on behalf of the plaintiff in building up the magnesia lime business and in securing customers and contracts with its customers which were secured, and damage by reason of the defendants’ breach to the amount of $30,000. In the affidavit are stated the grounds and sources of the cause of action as the breach of the contract set forth by the defendants to be the *397large expense incurred by the plaintiff in securing customers, and the contracts made with such customers, which would yield large profits to the plaintiff; that by the terms of the contract which plaintiff had with the defendants and the contracts which plaintiff had with its customers the plaintiff was receiving a net profit on each of the 50 tons per day which it had contracted for and was receiving from the defendants prior to their breach the sum of 35 cents per ton, and that by reason of the plaintiff’s contracts and business relations with the railroad companies such profit was being and was subject to a further increase of at least 10 cents per ton; that through the efforts of plaintiff with its customers and the magnesia lime trade, and the assistance that the plaintiff was able to give its customers, it was receiving an increased profit per ton for such lime, which profits were .likely or bound to increase each year for the remainder of the term of said contract, and a further increase was assured if the succeeding term to which the contract could be extended was exercised by the plaintiff, and which the plaintiff intended to so exercise upon the renewal therein contained.

*396¶ 1. See Attachment, vol. 5, Cent. Dig. § 272.

*397Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Hatch, Keener & Clute, for appellants.

Weeds, Conway & Cotter, for respondent.

SMITH, J.

Defendants challenge the sufficiency of the papers upon which the attachment rests on‘the ground that there is no proof of any damage suffered by the plaintiff by reason of the breach of the contract. They do not question the right of the plaintiff to an attachment where unliquidated damages only are demanded. The defendants contend, however, that there must be evidence of such damage sufficient to authorize the court to say prima facie that damage to the amount claimed has been sustained by the plaintiff. This position would seem to be supported by the authorities. See Ladenburg v. Com. Bank, 87 Hun, 269, 33 N. Y. Supp. 821. In that case Judge Van Brunt, writing for the Appellate Division in the First Department, says:

> “To sum up the whole matter, it would seem that it is necessary that there should be presented to the court facts upon the face of the papers showing a reasonably certain right of recovery; and where the existence of certain facts is necessary to a recovery, unless such facts are shown, there is presented no right to recover, nor is any cause of action shown to exist.”

See, also, Walts v. Nichols, 32 Hun, 273; Manufacturers’ National Bank v. Hall, 60 Hun, 466, 15 N. Y. Supp. 208; Bloomingdale v. Cook, 35 App. Div. 360, 54 N. Y. Supp. 924; Delafield v. J. K. Arms-by Co., *62*App. Div. 262, 71 N. Y. Supp. 14.

In the Delafield Case the headnote reads:

> “Section 636 of the Code of Civil Procedure, providing that, in order to entitle the plaintiff in an action to recover damages for a breach of contract to a warrant of attachment, ‘the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above all counterclaims known to him,’ requires that the affidavit set out the evidence upon which the plaintiff relies to prove his damages.”

> “Where the action is brought upon a contract of sale of goods for future delivery, the measure of damages ordinarily is the difference between the contract price and the market value of the article at the time and place where it should have been delivered. A statement in the affidavit on which the attachment is granted that the plaintiffs, in reliance upon the contract, sold the goods for future delivery for $9,000.20 in advance of the price which they had agreed to pay the defendant therefor does not comply with the require*398ment of the Code, as that sum is not the correct measure of damages, unless it appears that there was no market price for the article at the time and place of delivery, in which case such measure of damages might apply.”

Under the rules of law as thus defined, has the plaintiff established that a certain sum is due for the breach of this contract ? I apprehend that it will not be questioned that primarily the measure of damage for the breach of the contract is the difference between the price named in the contract and the market value of the article named— the price at which it could be obtained by the plaintiff from other dealers., The plaintiff, upon the breach of the contract by the defendants, is bound to seek the goods in other markets, and it is only upon his failure to find them there that he can recover any special damages as loss of profits. There is no attempt to claim in the affidavit presented that lime of equal quality could not have been obtained from other dealers, and the contracts of the plaintiff have been fulfilled with the lime so obtained. Without such an allegation, proof of loss of profits upon this contract becomes wholly immaterial, and establishes no sum as due and owing from the defendant to the plaintiff for breach of the contract. Within the authorities cited, therefore, we think that the plaintiff has failed to make proof of any damages caused by the breach by the defendant of its contract, and that the attachment cannot be sustained.

The order should therefore be reversed.

Order reversed, with $10 costs and disbursements, and motion to vacate granted, with $10 costs, without prejudice to any other application upon payment of costs. All concur.