#### Charles H. Norton *et al.*plaintiffs and respondents, *vs.*Joseph Wales *et al.*defendants and appellants.

1. The measure of damages for the breach of an executory contract.to sell.and deliver merchandize for a price not to be paid until delivery, is the difference between the contract price and the market value at the time the merchandize was to have been delivered.

2. Whether the contract either fixes a day for the delivery, or allows a reasonable time, delay of the purchasers in delivering, made at the seller’s request, but without any valid agreement for delay at any time which would preclude the purchaser from bringing an action immediately, does not extend the time, so that an advance in the market price meanwhile can, be considered in computing the damages.

(Before Robertson, White and Barbour, JJ.)

Heard June 8,1863;

decided December 30, 1863.

This was an appeal by the defendants from an order denying a motion for a new trial, and also from the judgment entered on the verdict.

The action was brought by Charles H. Norton and Willard Gregory against Joseph Wales and James S. and Peter S. Wetmore. '

' The complaint alleged that, on the *8th of*August,'1862, an agreement was made between the plaintiffs and the defendants for the sale, by the latter to the former, of three hundred barrels of naptha, at eighteen cents per gallon, to be delivered ten days from that time ; that a portion thereof, fifteen barrels, had not been delivered, although demanded, and that the plaintiff had sustained damage by reason of such non-delivery. The complaint also, as for a separate cause: of action, set up a similar contract, made on the *20th of August,*1862, for the delivery of two hundred barrels of benzole, *without delay,*at fifteen and a half cents per gallon, and alleged a 'like failure to deliver ninety-nine barrels of the same, although, demanded, and claimed damages thereby sustained.

The answer was that, at the times when the naptha and benzole were deliverable under the contract, their value in the *562market did not exceed the purchase price, and denied that the plaintiffs had sustained any damage beyond six cents.

The cause was heard on the 23d of March, 1863, before Justice Monorief and a jury.

Upon the trial the plaintiffs proved, without objection, that several times prior to the *middle of*November, 1862, they requested the defendants to deliver the benzole and naptha, and that the latter in reply, stated that the articles would “be along immediately,” would “ come right along ;” that about the middle of November, a like demand was again made, when the defendants said the plaintiffs had been very lenient with them, that the delivery ought to have been made before, and that if the latter would wait until the following Monday, it would all be made right with them ; that another and the last demand 'was made on the 21s£ *of November,*1862, when the defendants again admitted the plaintiffs had been very lenient, and said the goods ought to have been délivered before. The plaintiffs also proved that the market value of naptha and benzole, on the 12si *of November,*1862, was eighty cents per gallon. The defendants offered evidence to prove the value of the articles in August and September, and, also, up to and including the 14th of November ; which was excluded and an exception taken.

The court directed the jury to render a verdict for the plaintiffs for the difference between the contract prices of the naptha and benzole and eighty cents per gallon, to which the defendants excepted.

The defendants now appeal from a judgment entered upon the verdict rendered, and also from an order denying their motion for a new trial.

*E. & E. F. Brown,*for the defendants, appellants.

I. The plaintiffs, under the complaint, could give no evidence of any rise in the market in the price of oil between the time of the making of the contract and the time agreed on for the delivery, or afterwards, because* not averred in the complaint.

*5631. The general rule, as stated, on Chitty on Pleading, (vol, •1, page 386,) is that “ Whenever the damages sustained do not *necessarily*arise from the act complained of, and, consequently, are not implied by law, in order to prevent surprise on the defendant, which might otherwise ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained,, or he will not be permitted to give evidence of it. General damages are such as the *law*implies, and which are seen to be the necessary result of the injury complained of.”

2. It not being averred that the oil had risen in market, the law could not imply a rise of the oil in market, and damages to the plaintiffs on that account. It at most would imply only nominal damages. What can the law know of the rise in market of the oils in question so as to imply any thing more than nominal damages, no actual payment or loss of profits by a rise in market being averred? The court, therefore, erred in allowing any proof of a rise in the market value of the oil agreed to be delivered under the complaint. *(Deforest*v. *Leete,*16 *John.*126, 127. *Strang, &c.*v. Whitehead, 12 *Wend.*64. *Slack*v. Brown, 13 *id.*390, 393. *Squier*v. *Gould,*14 *id.*159. *Bogart*v. *Burkhalter,*2 *Barb. 525.)*

II. The plaintiffs having counted on the contracts as made, without reference to the extension of the time for the delivery of the oil, could not legally prove that the time for the delivery had been extended, for the purpose of increasing the damages consequent on a rise in the price of oil: and the court erred in allowing proof of the value of the oil on the 21st of November, 1862. *(Clark*v. *Dales,*20 *Barb.*42, *and cases there cited.)*

But in this case the complaint is on the original agreement, no mention being made of any extension of the time for the performance of the contract; and, consequently, they were not apprised' that the plaintiffs intended to rely on the enlargement of the contract. Had such substituted agreement been declared on, or the enlargement of the time of performance averred, the defendants could have answered and proved, *564that the defendants’ premise, to .deliver at a subsequent time was conditional,, to. be delivered when the same arrived from Pittsburg, Pennsylvania, they having purchased oil for that ' purpose, and -that the suit was brought before such oil arrived.. (2Q *Barb.68.)*

III. The measure of damages is the difference between the contract' price and the market value of the oil when' the same should have been delivered by the terms of the contracts, as *set.forth in the complaint. ■ (Dana*v. Fiedler, 2 *Kern.*40.)

1. The true inquiry is, at what price the plaintiffs could have purchased the articles in the market when they were to be delivered.. *(Id.)*If the plaintiffs could, at that time have purchased, the article in market for the same price, they can recover only .nominal damages. *(Taylor*v. *Read,*4 *Paige,*561. *Vanderslice v. Newton,*4 *N. Y.*130. *Davis*v. *Shields, 24 Wend. 322.),*The rule of damages adopted by the court was therefore; erroneous.

2. Had the plaintiffs counted on the agreement as extended in point of time, thus giving the defendants, an opportunity to take issue thereon, and set up the non-performance of the condition attached to the agreement for. extension,-there might have been grounds for claiming damage according to the price when the oil was to have been delivered by the last agreement extending the time. But as no mention is made of any agreement as to extension of time, in the complaint, it is obviously unjust to estimate the damages by the price on the 21st of November, long after the time agreed on for the delivery as charged in the complaint, because the price of oil had advanced.

3. The cases of *Wilson*v. *Little,*(2 *Comst.*443,) and the *Bank of Buffalo*v. *Kortright,*(22 *Wend.*348,) are not applicable to this case.> *(See Sedgw. on Dam.*260, 262.)

.. IV. The court.erred in allowing proof of the increased price of the oil more than fifty days after the time agreed upon for delivery, and in rejecting proof of the value at the time the article was to have been delivered by the contract, as alleged in the complaint and admitted.

1. If the plaintiffs’ theory is correct, although they may *565have bought the article in market, the day it should have been delivered, for the same or less than the contract price, still they might delay bringing suit until the article rose in market, although they had sustained no damage in fact, and then sue and recover the difference between the contract price and the increased price at any time thereafter, at which they saw fit to demand it. Such surely can not be the law where there has been no payment of price by the purchaser.

2. Where a purchaser has *paid*for the article, or in case of a loan of money, stock is pledged as *security*for its payment, which is .the same thing as payment, the measure of damages is the difference between the contract price and the price of the article when demanded, *(Sedgw. on Dam.*260;) and the reason assigned is, that by payment in advance, the purchaser *may*be deprived of the means of purchasing the same article in market, on the defendants neglecting to perform his contract. *(Id.)*

Y. The charge of the judge to the jury was erroneous; he left nothing to the jury but a mere matter of computation.

1st. The court erred in not charging that the plaintiffs were entitled to recover only *nominal*damages, there being no proof that when the oil should have been delivered as stated in the complaint it *was*worth any more than the contract price. *(Bee authorities cited under the third point; also Graham on New Trials, 3d vol. p.*708, 709.)

2d. The court erred in charging positively that the plaintiffs were entitled to recover the difference between eighteen and eighty cents per gallon, which would be $2926.20, .leaving nothing whatever for the jury as above stated, and which verdict the court told the jury could be corrected by the agreement of counsel if they made a mistake.

3d. If the charge of the court be a positive direction to find, anew trial will be granted. (3 *Gra. & W. on New Trials,*738. *Fitzgerald*v. *Alexander,*19 *Wend.*402. *Trotton*v. *Sanders,*7 *Marsh. Rep.*321. *Fisher*v. *Duncan, 4 Hen. & Mun.*563. *Utica Ins. Co.*v. *Badger,*3 *Wend.*102, *Crawford*v. *Wilson,*4 *Barb.*517. *Rich*v. *Rich,*16 *Wend.*676.)

*5664th. The court should have instructed the jury that the measure of damages was the difference between the'contract price and the price of the article when it should have been delivered. Even had it instructed the jury that the time for delivery was the 21st of November, 1862, and submitted the question of damages to the jury under such instructions, the _ jury would have been justified in finding a less amount as damages, under all the circumstances, than $2926.20. If the jury, from the evidence, had believed the damages were less, and so found, the court could not for that reason alone have been compelled to set aside such verdict. If not, and if the jury had a *right*to weigh the evidence on the question of damages, and if they had come to the conclusion and belief that the plaintiffs would#be compensated with a less sum, and had the *right*so to find, the charge of the judge was erroneous; and a new trial should be granted. *(Lytle*v. *Lee,*5 John. 112. *Foot*v. *Wiswall,*14 *id.*304. *Sayre*v. *Townsend,*15 *Wend.*647. *Aylwin*v. *Ulmer,*12 *Mass. Rep.*22. *Allen*v. *Hopman,*2 *Dana,*221. *New York Firem. Ins. Co.*v. *Walden,*12 *John.*512. *Nichols*v. *Goldsmith,*7 *Wend.*160. *Dallam*v. *Handly,*2 *A. K. Marsh.*413. *Morton*v. *Fairbanks,*11 *Pick.*368. *Gains*v. *Buford,*1 *Dana,*481.)

*A. E. Doolittle,*for the plaintiffs, respondents.

I. The measure of damages where a vendor refuses to deliver an article of merchandize sold, and where no money has been paid by the vendee, is the difference between the contract price and the value of the article at the time when it should have been delivered. *(Dey*v. *Dox,*9 *Wend.*129. *Davis*v. *Shields,*24 *id.*322. *Beals*v. *Terry,*2 *Sandf.*127.)

II. The time of delivery in this case having been extended, at the special instance and request of the defendants, and under their renewed promise to deliver, until the 21st day of November, 1862, and the plaintiffs at that time refusing to extend the time further, that became the day on which the delivery should have been made, and the market price on that day, less the contract price, is the proper measure of the *567plaintiff’s damages. *(Kipp & Brown*v. *Wiles,*3 *Sandf.*585. *Wilson*v. *Little,*2 *Comst.*443. *Davis*v. *Shields,*24 *Wend.*321. *Clark*v. *Dales,*20 *Barb.*42.)

III. The objection that the allegations of the complaint are not sufficient to admit evidence of the market price of naptha and benzole, on the 21st day of November, to ascertain the measure of the plaintiff’s damages, is not well taken, because: 1st. The defendants were not taken by surprise by admission of evidence to prove the extension of time for the delivery. The complaint' alleges continuous and repeated demands, and the language of the defendants, used on the 21st of November, in answer to the formal demand, fully proves they understood and recognized it as a continuing contract, and their liability to pay the market price, viz. eighty cents, on that day, and urged a rising market as an inducement to the plaintiffs to grant a further extension. 2d. It was not necessary that the complaint should contain an averment that the time was extended, in order to admit evidence that the plaintiffs, at the request and upon the application of the defendants, had consented to, or acquiesced in an extension of the time of delivery. The object of the evidence was not to show that a new contract had been made, but that the contracts as made were kept in force by the parties. The complaint is not that the defendants did not deliver the oil at the time originally agreed upon, but the complaint and breaches assigned are, that the defendants neglected and refused to deliver at any time. *(Crane*v. *Maynard,*12 *Wend.*408. *Clark*v. *Dales,*20 *Barb.*42. *Wilson*v. *Little,*2 *Comst.*443. *Kipp & Brown*v. Wiles, 3 *Sandf.*585.) 3d. The defects, if any, are those which have occasioned no surprise to the defendants, nor prevented them from availing themselves of any defense which they could interpose. If necessary, the court will direct the complaint to be amended, or deem it amended so as to conform to the facts proved. The power of the court, and the propriety of its exercise in this case, can not be doubted. *(Code,*§§ 169, 170, 173, 176. *Field*v. *Hawxhurst,*9 *How.*75. *Hall*v. *Gould,*3 *Kern.*127. *Howard’s Code, p.*315, *note and cases there cited.)*

*568By the Court, Barbour, J. (After stating the facts.)

The true measure of. dantages in cases of this, character, where the purchase price of the article to be delivered is not paid at the-time or before the’ contract is made, but is to be paid over to the vendor upon the delivery of the goods, is the difference between the contract price and their- market value at the time they, were -to -have beendelivered. *(Clark*v. *Pinney*7 *Cowen,*681. *Taylor*v. *Read, 4 Paige,*561. *Davis*v. *Shields,*24 *Wend.*322.): • In this case, fifteen barrels of naptha, in addition to-.those actually" handed- -over, were, by the contract, to be delivered, oil the ! *8th of-.August,*and the benzole, of-which there Was a .deficiency of -ninety-nine barrels, was to be .delivered *without-, delay; ■*or, in other words, within a reasonable ■ time. ,=Ho evidence was given-, to show what would have been a reasonable, time, but, in the.absence of such evidence; it, will; probably, be safe to assume- that upon a contract’-for "the delivery of merchandise of this ■ description, in the city of Hew York, without. delay, a -failure.to deliver within, ten daysshould’ be considered ■ unreasonable. Upon this -assumption, the benzole was,-by the ■ contract, to be delivered on-.-'or before :the 30th of August; and,- as", we have seen,::the naptha was deliverable on the 18th;■ ¡It follows that the' difference between the- contract prices and the value of the articles," respectively,, on those days, formed the true measure of ;the-damages, if..any; to which• the plaintiffs were entitled; because i of .the defendants’ non-performance, -and.: ought to have been Ascertained upon the trial,- unless the period of performance, was extended by.-the.parties-. . . ■

.i .The., doctrine is ¡'well settled that ¡an, extension of ¡the time for, the performance of-a-contract is a new agreement between the-; parties, ■ •" substituted - *pro tanto*-in* place of the original. *(Clarke v Dales, 20 Barb.*42.) --It is not-claimed in this case .that- the; plaintiffs ever. actually agreed'with the defendants to. extend the time of 'delivery,, or; in words, assented to their-request for further, time ;■ and/ it seems tó me, no such agreement can be, implied from -the ■fact that - the plaintiffs repeatedly, asked; «the; defendants to deliver the goods, and the latter as often refused-a-further ,delay. .¡Hothing was said at *569either of those conversations which would have precluded the plaintiffs from bringing a suit for the recovery of damages immediately afterwards. To put a single instance: there was no such extension of time given, even by implication, in the conversation of the middle of November, as would have prevented the plaintiffs claiming in this action that the 15th of November was the delivery day, with as much propriety as he did insist that the time was extended to the 21st.

For these reasons, I am of opinion that the learned justice erred in excluding the testimony offered to show the market value of the goods, prior to the 21st of November, and in directing the jury to find a verdict for the difference between the market value on that day and the contract price; and that the judgment ought to be reversed, and a new trial granted, with costs to abide the event.

White, J. dissented.

New trial granted.