#### Irving Finkelstein, Appellant, *v.*Abraham Selwitz, Respondent.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

Contracts — breach of contract to manufacture — measure of damages — resale.

Upon the breach of a contract to manufacture made in view of the fact that the purchaser has placed orders to resell the merchandise, the measure of damages is the difference between the market price at the time and place of delivery and the contract price if the goods are obtainable in the market; if not, then the difference between the contract price and that at which the purchaser had placed orders for a resale, less his expenses in carrying out the contract.

*29Appeal by plaintiff from a judgment of the City Court of the city of New York, entered on a direction of the court dismissing the complaint at the conclusion of plaintiff’s case.

House, Grossman & Vorhaus (Charles Goldzier and Gerald B. Rosenheim, of counsel), for appellant.

Louis Nahemow (Max L>. 'Steuer and Julian Arthur Leve, of counsel), for respondent.

Gerard, J.

The complaint alleges that on or about October 19, 1910, in consideration of the agreement on the part of the plaintiff to pay the sum of $6.75 for each garment, the defendant promised and agreed with plaintiff to manufacture for him 585 ladies’ coats and to make delivery at certain specified times; that the plaintiff at the time of the making of such contract had orders for such merchandise at a price on which he would have realized a profit of about $2,000, and that he had informed the defendant of the fact that he had such orders and would realize such profits, and that said agreement was made in view of such orders and such anticipated profits; and the plaintiff alleged that, by the failure of the defendant to perform, the plaintiff lost the profits which would have been realized as aforesaid, and sustained injury to his damage in the sum of $2,000, and demanded judgment for the sum of $2,000 and costs.

At the conclusion of the plaintiff’s case defendant moved to dismiss the complaint on the ground “ that plaintiff has wholly failed to establish any measure of damagesand this motion was granted after plaintiff had asked leave to go to the jury on the question of damages sustained by the plaintiff.

Upon the breach by a manufacturer of a contract to manufacture and deliver merchandise, where the manufacturer is advised at the time when the contract is made that the purchaser has placed orders to resell the merchandise, and the contract was made in view thereof, the measure of damages is the difference between the market price at the time and place of delivery and the price at which the manufacturer agreed to sell and deliver the goods, if the goods are obtain*30able in the market; and if not, then the difference between the contract price and the price at which the purchaser had placed his orders for "a resale, less his expense in carying out the contract. Ideal Wrench Co. v. Garvin Machine Co., 92 App. Div. 187, affd. 181 N. Y. 573; Lowenstein v. Hargraves Mills, 141 App. Div. 232.

The learned court below excluded testimony offered by plaintiff tending to show that the plaintiff had endeavored to buy goods of the character contracted for in the open market. Even if the plaintiff failed to prove special damage, he was entitled to recover as general damage the difference between the market price at the time and place of delivery and the price at which the defendant agreed to sell and deliver the goods.

We think that the complaint here contained sufficient allegations of general damage, but even if it did not, if the complaint stated facts that constituted a cause of action, the evidence should not .have been excluded, although plaintiff specified only items of damage to which he was entitled. As was said in Colrick v. Swinburne, 105 N. Y. 503, at page 507: “ The complaint was sufficiently specific to authorize the recovery of whatever legal damages were recoverable for the. wrong. * * * The complaint averred a legal wrong and a resulting pecuniary injury, and it was competent for the court, under the complaint, to adjust the recovery upon the true basis.” . “ It is not material that the plaintiff did not demand the precise damage to which he was entitled, or that he mistook the true rule of damages in his complaint.” See also Coppola v. Kraushaar, 102 App. Div. 306.

The judgment appealed from must be reversed and a new trial ordered with costs to appellant to abide the event.

Seaitoby and, Guy, JJ., concur.

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