Cramer v. Grand Rapids Show Case Co.

• Decision Date: 05 March 1918
• Citation: 223 N.Y. 63,119 N.E. 227
• Parties: CRAMER et al. v. GRAND RAPIDS SHOW CASE CO.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 63

119 N.E. 227

CRAMER et al.

v.GRAND RAPIDS SHOW CASE CO.

Court of Appeals of New York.

March 5, 1918.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Caroline V. Cramer and another against the Grand Rapids Show Case Company. From a judgment for plaintiffs, affirmed by the Appellate Division (165 App. Div. 942,149 N. Y. Supp. 1076), defendant appeals. Reversed.

E. W. Personius, of Elmira, for appellant.

Halsey Sayles, of Elimira, for respondents.

HOGAN, J.

In May, 1910, the plaintiffs, residents of Watkins, Schuyler county, formed a copartnership to carry on the business of dealing in ladies' furnishings in the city of Amsterdam. The plaintiff Gurnett, though a business man, had no previous experience in that line of business. The plaintiff Cramer had taught school in Amsterdam from September, 1909, until some time in May, 1910, when she secured employment in a department store in the city of Elmira, and worked there from May 26, 1910, until the latter part of July following.

Early in May, 1910, the plaintiffs leased a store in the city of Amsterdam at a monthly rental of $100 a month. The store was devoid of fixtures except electric wiring. Plaintiffs, desirous of securing the necessary furniture and fixtures to carry on the business and to open the store in September, on or about June 9, 1910, sought to procure the same from the Watkins Undertaking Company. That company, following consultation with plaintiffs and one Marks, a representative of defendant, gave to Marks a purchase order in writing dated that day, addressed to the defendant, to ship the articles of furniture therein enumerated and described as ‘sold to Watkins Undertaking Company, Watkins, N. Y., ship to J. W. Gurnett, Amsterdam, N. Y.’ The furniture was specified in detail, the purchase price at $1,376.25, net 50 days, f. o. b. Grand Rapids to be delivered not later than August 15th. The contract was signed by defendant Marks, salesman, and accepted by the Watkins Undertaking Company.

About August 15th the plaintiffs were in the city of New York. They called on Marks and told him that they were in the city for the purpose of purchasing a stock of seasonable goods, which they would not purchase if they were going to be delayed in receiving the furniture. They were assured by defendant, through Marks, that the furniture would be shipped in a few days. Plaintiffs thereupon purchased a stock of goods suitable for the fall and winter trade at a cost of $7,842.37, and planned to open the store in Amsterdam between September 15th and 20th. The defendant failed to ship the fixtures and furniture, and this action was brought to recover damages for a breach of the contract. The amended bill of particulars of the damages claimed consists of seven separate items, and in view of the evidence adduced on the trial reference to the same is material. The total amount claimed was $6,703.62. Of that amount $5,916 was stated as damages sustained by reason of fall and winter trade and the profits which plaintiffs otherwise would have made from the sale of goods. The balance of $787.62 consisted of loss of rent of store, two months, $200; temporary fixtures, $100; interference of business, placing new furnishings, $200; increased price for same, $100; obligation to pay commissions, $137.62; small items for board, $50. The evidence fails to disclose that plaintiffs after purchase of new fixtures paid any sums therefor in excess of the amount stated in the contract to be paid, or that any amount was paid or obligated to be paid for commissions, or for board bills. Those items deducted would leave the claim sought to be established $5,916 for loss of profits and remaining items $500. The jury rendered a verdict in favor of plaintiffs for $3,310. The Appellate Division reduced the same to $1,500, which was assented to by plaintiffs, and as thus modified the judgment was affirmed.

It is apparent that the verdict largely included an allowance to plaintiffs for loss of profits. As the Appellate Division affirmed without opinion we are unable to determine the basis of the modification made by it. The recovery allowed by the modification, however, is greatly in excess of the amount of damages claimed by plaintiffs other than for loss of profits.

Upon the trial, plaintiffs, over objection and exception of defendant, were permitted to prove the amount of sales made by them and the profits...