GOLDEN GATE CONCENTRATOR COMPANY v. JACKSON

GOLDEN GATE CONCENTRATOR COMPANY v. JACKSON. N. Y. Supreme Court, Special Term, First District, May, 1884. Sales; action for buyer’s refusal to accept.—Attachment-, AFFIDAVIT AS TO DAMAGES. To obtain an attachment in an action to recover damages for a breach of contract, the plaintiff must show by proof that he is entitled to recover a specific sum. A general averment of damage is not sufficient. And when the affidavit shows a contract for the sale and delivery o'f goods, refused by the purchaser when duly tendered by the seller, the sum alleged as the damage sustained must affirmatively appear to be the difference between the contract and the market price of the property at the time for delivery. Motion to vacate an attachment. An attachment was granted against the property of defendant, a non-resident, on an affidavit setting forth that plaintiff had agreed to sell and deliver to defendant, and defendant had agreed to receive two certain machines at an agreed price of $2,050; that plaintiff did tender said machines to defendant at the appointed time and place, but that defendant refused to receive the same, etc. The damage alleged by reason of this: breach of contract by defendant was $2,050, the price at which the machines were to have been delivered. Defendant moved to vacate the attachment. 1 A. J. Requier and Theodore Connoly, for the motion.—The affidavit does not show that the plaintiff is entitled to recover a sum stated therein over and above all counter-claims known to him (Code Qiv. Pro. § 636). This sum means a sum certain growing out of the facts constituting the claim. It does not mean a mere conclusion of the affiant’s mind, still less, a conclusion at variance with the facts stated. In all contracts for the breach of an agreement for the sale and delivery of an article, when broken by the refusal to take on the part of the purchaser (there being no allegation that it is to be specially manufactured for the vendee), the measure of damages is the difference between the contract price and, the market value of the article on the day of the tender and refusal. In the present case, the affidavit does not state what the market value was on that day, and this essential fact being omitted, the court can form no conclusion whatever as to the extent of the alleged damage. And when instead of this there is given a mere conclusion of the affiant’s mind that plaintiff’s damage is the full agreed price of the article refused, and which the plaintiff retains, this conclusion cannot be true unless the article is absolutely worthless, of which there is here no allegation. Consequently the court has no knowledge of the real amount of the claim. Bracken & Ackley, opposed. [MAJORITY — Barrett, J.] Barrett, J. The point is well taken that the damages are not liquidated by the affidavit. An attachment cannot be reduced; consequently, a general .averment of damage, as in a complaint, will not do. The siiecific sum must be established by proof, not merely averred. Here the plaintiff sues for the contract price, claiming that as his damage. But such is not his damage. His damage is the difference between the contract and' the market price of the property at the time.for delivery (Billings v. Vanderbeck, 23 Barb. 554; Davis v. Shieds, 24 Wend. 322; Sedg. on Damages, 260). This rule is not affected by the foreign cases cited by plaintiff. The case of Bement v. Smith (15 Wend. 493),' was explained in Billings v. Vanderbeck (supra), as applicable to work and labor, as where a machine ..is manufactured for the vendee. But here it is not averred that the machines were to be manufactured for defendant. The affidavit specifies only an agreement to sell and deliver, non constat, from an existing stock of machines. It is not necessary, therefore, to consider the other points, as, for the reasons given, the plaintiff has not shown by affidavit that he is entitled to recover the sum. stated. Motion granted, with costs.