#### The Raymore Realty Company, Appellant, *v.*Pfotenhauer-Nesbit Company, Respondent.

First Department,

June 2, 1911.

Damages — sale — failure to deliver bricks on time — when general rule does not apply — what damages may be recovered.'

Where in an action to recover for failure to deliver certain brick at the times called for in the contract of sale, it appears that it was impossible' to obtain the kind of brick contracted for except from the defendant and that plaintiff having commenced to use it could not have-substituted other brick without injuring the appearance of his building, the general rule that the damages are the difference between the contract price and the market price at the time and place of delivery has no application.

The impossibility of proving with mathematical exactness the amount of damages sustained does not prevent a recovery provided such damages are certain in their nature and are caused by the. breach of contract.

Where it appears that the vendor knew that loss would result from delays in delivery, wherefore a clause making delivery contingent on strikes, etc., was stricken out, he is liable for wages paid to workmen when idle and waiting for more brick.

The owner cannot, however, recover the proportionate amount of taxes, on the property during the time the work was delayed by failure of the defendant to deliver the bricks, nor the interest on the value of the property during that time, for the delay was not the cause of these expenditures.

Nor can the owner recover money paid the contractor for damages sustained by the latter’s being prevented from doing work on other contracts. Such item is too remote to be included.

To justify a recovery for loss of rentals to the property there must be evidence from which the jury could find the extent of the delay in the completion of the building caused by the defendant’s breach and the usable value of the property or the rental loss during that time.

Appeal by the plaintiff, The Raymore Realty Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of March, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York,Trial Term.

*Louis A. Jaffer,*for the appellant.

*.James W. Dean,*for the respondent.

*164Miller, J.:

The action is for breach of contract. On the. 1st day of August, 1909, the plaintiff entered into a written contract with the defendant for the purchase of “about 100,000” Roman brick, to be delivered when ordered. The defendant knew that the brick was' intended for the courts, areas and front of an apartment house which the plaintiff was constructing on West One Hundred and Sixth street, between Amsterdam avenue and Broadway, borough of Manhattan. The plaintiff ordered the entire quantity to be delivered forthwith, and when the contract was made the defendant was informed that loss would result to the plaintiff from delays in delivery. Wherefore, a clause in the printed form of order prepared by the defendant, to the effect that it was “ contingent upon strikes, accidents and other delays unavoidable, or beyond the control of the sellers,” was stricken out. The evidence tended to show that the plaintiff made repeated demands for the delivery of the brick, but that the deliveries were of small lots of a few thousand each from September 9, 1909, to December 11, 1909. The evidence also tended to show that if the brick had been delivered when ordered the building would have been inclosed by October 1, 1909, but because of the delays it was not inclosed until the latter part of December or the forepart of January, and the plaintiff claims that it was thus delayed at least two and one-third months in the completion of the building. It was impossible to obtain the kind of brick ordered in the market or from any one but the defendant, and after commencing the use of the brick, the plaintiff could not have substituted other brick without injuring the appearance of the building.

The learned trial judge dismissed the complaint for the reason that there was no proof of the difference between the contract price and the market price of similar brick at the time and place of delivery. But it is plain that the general rule of damage has no application to this case, and the question involved is whether there was any evidence of special damages which required the submission of the case to the jury.

The general rule .not being applicable, the plaintiff was entitled to recover such damages as were within the contemplation of the parties, *L*e., those flowing directly and naturally from *165the breach. The impossibility of proving with mathematical exactness the amount of the damage sustained would not prevent a recovery, provided such damages were certain in their nature and in respect of the cause from which they proceed. *(Delafield*v. *Armsby Co,,*131 App. Div. 572; affd., on opinion below, 199 N. Y. 14.)

The plaintiff claimed four items of damage, viz.: 1. $1,700, paid the building contractor as damages for delay. 2. $2,600, interest on the average value of the property during the two and one-third months of delay claimed. 3. $486, the proportionate amount of taxes assessed on the property for that time. 4. $7,778, rentals lost by reason of the delay. The plaintiff did not have to pay taxes or interest because of the delay.

With respect to the first item, the evidence showed that the plaintiff agreed to pay the said contractor $1,700 as damages for the delay caused by the defendant’s breach, and gave its note therefor, but that item included $1,400 as estimated damages sustained by the contractor by being prevented from doing work on other contracts. Obviously, that item was too remote to be included. There was evidence, however, tending to show that the contractor was put to an extra expense of $300 paid to the workmen when idle and waiting for more brick to be delivered. The defendant’s breach of contract was the proximate cause of that damage, and it must be presumed to have been within the contemplation of the parties when the contract was made. It was, therefore, error to dismiss the complaint.

As to the last item of damage the defendant must have known that a delay in the completion of the building would' deprive the plaintiff of the use of the property during such delay. Such damage, if shown, was the direct and natural result of the defendant’s breach. There is one difficulty, however, in the proof on that head resulting from the fact +1⁄81⁄8 the building was not completed and ready for occupancy until October 1, 1910, and it would not have been completed in any event until some time in the summer of 1910. Tile delay in delivering the brick did not necessarily cause a like delay in the completion of the building, though it doubtless,impeded the other work to some extent. Proof of the yearly réntals did not *166establish the loss sustained by the plaintiff in not having the building ready for occupancy until October 1, 1910, instead of some time in July or August. To justify a recovery on that head there must be evidence from which a jury can find, not necessarily with mathematical accuracy, the extent of the ultimate delay in the completion of the building caused by the defendant’s breach and the usable value of the property or the rentals lost during that time.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J„ McLaughlin, Laughlin and Dowling, JJ., concurred.

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