Walter F. Kilpatrick, Respondent, v. William Whitmer & Sons, Incorporated, Appellant

Walter F. Kilpatrick, Respondent, v. William Whitmer & Sons, Incorporated, Appellant. First Department, March 8, 1907. Sale — evidence — erroneous exclusion and admission of evidence as to damage. In an action founded upon the breach of a contract to sell and deliver lumber purchased from a wholesale dealer, it is.error to admit evidence of the retail price of lumber as a basis of damage. Under such circumstances the damage is measured by the difference between the wholesale price and the price at ■ which the defendant agreed to sell and deliver, and not the retail price which involves the expense of handling, storing and profit to the dealer. So, too, it is error to exclude testimony of a sales agent of a foreign manufacturer who is shown to be familiar with the wholesale price of similar lumber at the place of delivery in this State. Appeal ■ by the defendant, William Whitmer & Sons, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of June¿ 1906, upon the. verdict of a jury, and also from an order entered in said clerk’s office on the 12th day , of July, 1906, denying the defendant’s motion for a new trial made ■upon the minutes. Wilson B. Brice, for the appellant. Martin S. Lynch, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: The defendant, á lumber manufacturer, agreed to sell to plaintiff, a lumber dealer, twenty carloads of West Virginia clear spruce lumber at a specified price per 1,000 feet delivered at the city of New York. Only a part was delivered, and the plaintiff, claiming breach of contract by defendant and that the market price of this class of lumber had largely increased/ brings this action to recover damages for failure to deliver the balance. From the judgment obtained by the plaintiff thereon the defendant appeals and urges that error was committed in receiving evidence as to the retail price of this character of lumber in the city of New York instead of confining the proof to the wholesale or manufacturers’ price, and also that the court erred in excluding the evidence of defendant’s witness Dun woody as an expert on the wholesale market price during the time involved. In both of these contentions we think the appellant is correct. Plaintiff’s witnesses, Steinway and Tiemann, were both permitted to Testify against defendant’s objection as to the retail price asked by dealers in the city of New York for lumber of the character of that in dispute. Although each ivas accustomed to buy large quantities, each bought from dealers and not producers. Neither of them pretended to know the wholesale or manufacturers’ price, and neither of them assumed to state any other prices than those at which he bought from dealers or at which dealers offered the lumber to him. Olear West Virginia spruce lumber or clear spruce lumber of any other locality is not produced in the city of New York but must be transported from the place' of its manufacture. The defendant sold and the plaintiff bought at wholesale. Presumably there was a wholesale market for such lumber. The difference between such wholesale or manufacturers’ price and that at which the defendant had agreed to sell was the measure of plaintiff’s damage if in fact the defendant violated its contract with him. It is urged that the lumber in question was of a peculiar character and that no wholesale market price existed. The record does not disclose such to be the situation, and much clearer proof than appears must be presented before any rule different from the ordinary one can be invoked by plaintiff. It was, therefore, error to permit evidence of the retail price, which involves ordinarily not only the expense of handling and storing, but a profit to the dealer. The witness Dunwoody, produced by the defendant, testified that he was sales, agent for a large lumber manufacturer of West Virginia c-lear spruce, and that .his territory extended over several States, including Hew York, and that he was familiar with the wholesale price of such lumber during the period in question, arid knew what it was quoted at and sold for in the .city of Hew York.The fact that his office was located in the city of Philadelphia did not disqualify him, if he, in fact, knew the price of such lumber delivered at the city of Hew York, which he testified he did. The question involved was not what such lumber actually sold for in the city of Hew York, but at what price dealers in such city .could buy such lumber from the producers, delivered at that city. This witness, whose testimony was excluded, appeared to be especially competent to testifyin that respect. While his testimony, in a sense," would have been cumulative, in view of the very large increase of price awarded to plaintiff, we cannot say that his testimony, if admitted, would not have been influential with the jury. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the. event. ■ Patterson, P. J., Laughlin, Scott and Lambert, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant •to abide event. Order filed.