Silberstein v. Duluth News-Tribune Company
| Decision Date | 07 June 1897 |
| Docket Number | 10,576--(101) |
| Citation | 71 N.W. 622,68 Minn. 430 |
| Parties | BERNARD SILBERSTEIN and Others v. DULUTH NEWS-TRIBUNE COMPANY |
| Court | Minnesota Supreme Court |
Action by Bernard Silberstein and another, partners as the Crowley Electric Company, against the Duluth News-Tribune Company in the municipal court of Duluth. From a judgment entered pursuant to findings by Boyle, Sp. J., in favor of plaintiffs, defendant appeals. Affirmed.
Judgment affirmed.
Neff & Hartley, for appellant.
Herbert R. Tinkham, for respondents.
The parties hereto entered into a contract on January 21, 1896, whereby the plaintiff agreed to furnish, set up, and wire for the defendant a ten horse power arc motor with base frame. belt tightener, brushes, regulator foundation, and oil pan, for the sum of $ 248. The machine was to be a secondhand one, but was guarantied to be first class, and as good as new. The plaintiffs entered upon and tendered performance of the contract on their part, but the defendant refused to let them complete it. Thereupon the plaintiffs brought this action for damages for such breach, and recovered a judgment for loss of profits in the sum of $ 128.97, from which the defendant appealed. The only questions raised on this appeal relate to the assessment of the damages.
The measure of damages for the sale of goods is, as a general rule, the difference between the contract price and their market value. But where, as in this case, the performance of a special contract requires the furnishing of both material and labor, and the contract is entire, and the breach total, loss of such profits as would have accrued from the contract as the direct result of its fulfillment may be recovered in an action for the breach thereof. Such profits may be proven by showing the difference between the contract price and what it would have cost to perform the contract. Morrison v. Lovejoy, 6 Minn. 224 (319); Glaspie v. Glassow, 28 Minn. 158, 9 N.W. 669; Pevey v. Schulenburg, 33 Minn. 45, 21 N.W. 844; Ennis v. Buckeye, 44 Minn. 105, 46 N.W. 314; Fox v. Harding, 7 Cush. 516; Masterton v. Mayor, 7 Hill 61; O'Connell v. Main, 90 Cal. 515, 27 P. 373.
The correctness of this rule is not seriously controverted by either of the parties hereto, but they differ radically as to how the cost of performance is to be ascertained. The defendant's claim is that it and the profits are to be ascertained by adding the market value of the materials to the cost of the labor at its reasonable value, which is required for the execution of the contract, and deduct this amount from the contract price, and the difference, less a reasonable allowance for risks and contingencies, if any there are, will be the profits. On the other hand, the plaintiffs claim that the cost of performance of the contract in this case is the amount actually paid for the material and labor necessary for the performance of the contract, and the difference between this amount and the contract price gives the profits. The trial court adopted the rule suggested by the plaintiffs, and received evidence as to the actual price paid for the motor and the work done upon it to make it conform to the requirements of the contract. The finding of the court as to damages was based on this evidence. If the rule for ascertaining the cost of performance suggested by the defendant is an inflexible one, and applies to the special facts of this case, then the trial court erred. It is apparent, however, that no hard and fast rule for ascertaining the profits can be laid down.
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