Kemp agt. Knickerbocker Ice Company. ditions are to be simultaneously performed (Dunlap agt. Gregory, 10 N. Y., 241; Clement agt. Cash, ante). Cottreal agt. Talmage, decided in this court (1 E. D. Smith, 573) and affirmed by the court of appeals (9 N. Y., 551), broke fresh ground in the doctrine as to how far the sum named in the condition of a penal bond might be regarded as a penalty. That case has been cited with approval, and followed as an authority in subsequent adjudications, and the principles there laid down must be here applied in discerning the border line between a penalty and liquidated damages. The test in favor of the latter is shown to be "manifest difficulty in ascertaining damages arising from the breach, a fair conclusion that the amount is specified and agreed on for the purpose of saving the expense or avoiding the difficulty of proving the actual damages, and especially where the amount fixed and liquidated is not far beyond what might probably be expected to arise from a breach of the contract." to In the contracts under consideration the plaintiffs agree pay and the defendant to forfeit one dollar for each ton of ice unaccepted or undelivered. Did the parties intend that the words "pay" and "forfeit" should be construed as synonymous terms? In a recent case in the court of appeals (Noyes agt. Phillips, 16 Abb. Pr. [N. S.], No. 5), chief justice CHURCH holds that "the word forfeit is not conclusive, and that the words employed must in general yield. to the intention of the parties as evinced by the nature of the agreement, the amount of the sum named, and all the surrounding circumstances." Conceding, for the sake of the argument, that the sum the defendant was to forfeit in case of default on its part was understood and accepted as the extent of its liability when the contracts were executed, can any inference be drawn from this that such sum was to be the measure of damages which might probably be expected to arise from a fraudulent breach of the contract to deliver ice as agreed? It is manifest that the plaintiffs never contemplated or agreed upon a Kemp agt. Knickerbocker Ice Company. basis of compensation that would give the defendant the benefit of its own fraud. What, therefore, the parties did not originally intend, the court will not now enforce, especially when it appears that the sum stipulated is so inadequate to the loss occasioned by defendant's own wrong (Lampman agt. Cochrane, 16 N. Y., 275; Richards agt. Edick, 17 Barb., 260). All that plaintiffs claimed in their complaint as damages for the alleged breach was the difference between the contract-price and the wholesale market-price (sixteen dollars per ton) on the ice not delivered under said contracts. This difference was estimated at thirteen dollars and fifty cents per ton upon 1,413 tons on one contract, and fourteen dollars per ton on the other, making $38,857.50 in all, with interest thereon from January 1, 1871. This follows the general rule in cases of an ordinary breach of contract for the sale and delivery of merchandise whereby the vendee is allowed to go into the market to supply the deficiency caused by a non-delivery, and hold the vendor for any excess in price. A different rule was adopted upon the trial, and in the decision of this case, whereby it was held (by reason of the peculiar nature of the contracts in dispute) that plaintiffs were entitled to recover thereunder for gains prevented as well as losses sustained; that the parties having agreed that said ice was to be sold at retail at prices fixed by the defendant, such retail prices might be taken as a basis of the damages incurred by the plaintiffs. The case presents the following statement of the computation of such damages: Ice to be delivered on each contract.. Received on account.... Due on each contract.... Tons. 2,000 587 1,413 Ice bought after May 25, 1870, by plaintiffs from defendant at price of $17,686.87..... 1,180 No doubt can exist of plaintiff's right to recover said sum of $19,370.15, which was the excess of payments and interest for ice that was covered by the contracts. A more serious question arises as to the two parcels of 823 tons which were never delivered, and for which damages have been allowed, as before stated, at the retail price per ton, on the ground that such a basis of estimation may be supposed to have entered into the contemplation of the parties. Such is the doctrine laid down in Griffin agt. Colver Kemp agt. Knickerbocker Ice Company. (16 N. Y., 489); Starbird agt. Barrons (38 id., 230); Passenger agt. Thorburn (34 id., 634); Messmore agt. N. Y. Shot and Lead Co. (40 id., 422). Do these authorities control the present case? If the plaintiffs had purchased ice to meet the deficiency of the undelivered quantity (and it appears that they could have done so at sixteen dollars per ton) in that event the claim for damages would have been the difference between the sum last named and the contract-price, with interest thereon. Their position then would have been the same as if the like quantity of ice had been delivered by the defendant, subject to a recovery for excess in price. Having thus omitted or neglected to reinstate themselves as to the quantity of ice to be delivered and required, can they charge the defendant with the loss of expected gains which their own act might have prevented? Griffin agt. Colver was an action upon a breach of contract to deliver a steam engine at a day certain, to drive a planing mill and other machinery, whose operations were suspended by the failure to deliver, and the ordinary rent or hire which Icould have been obtained for the use of such mill and machinery was allowed, upon proof of the amount, as proper compensation for the use of the property, which was partially unoccupied by reason of such failure to deliver, the court holding that "the rent of a mill or other similar property, or the use of the machinery, are not only susceptible of more exact and definite proof, but, in a majority of cases, would be found to be a more accurate measure of the damages sustained than any estimate of anticipated profits. That rents are graduated according to the value of the property, and to an average of profits arrived at by very extended observation." Starbird agt. Barrons was a suit for damages by a common carrier for failure to furnish full cargo, delay in loading, detention of boat, &c., proof of which was excluded on the trial, and which was held to be admissible. In Passenger agt. Thorburn there was a breach of an express warranty that the seed sowed would produce Bristol Kemp agt. Knickerbocker Ice Company. cabbages, and a recovery was sustained for the value of such a crop, less the expense of raising, &c. Nothing is found in these authorities to vary the rule that, in a breach of contract for the sale and delivery of an article of general use and consumption, the damage recoverable is the difference between the contract-price and the marketprice at the time of the breach. The decision in Messmore agt. N. Y. Shot and Lead Co. rests upon the ground of the vendor's knowledge of an exist ing contract by the purchaser for a resale at an advanced price of the article which such vendor agreed to supply for the purpose of fulfilling such contract. It is unnecessary to cite other authorities upon this point, as the four cases last referred to have reviewed and settled the principle upon which expected gains may be allowed as damages upon a breach of contract for delivery of merchandise. The plaintiffs have not sought to rescind, but to affirm, their contracts with the defendant. All they can ask is to be placed in the same situation, by damages awarded, as if the contracts had been performed. If that had been done they must necessarily have incurred the hazard and fluctuations of trade in retailing the ice at the prices fixed. The defendant was under no obligation to indemnify them in such a case. As they could have supplied their deficiency under the contracts from an open market, and charged defendant with excess in price, should they be allowed to recover a larger sum or be placed in any better position than they would have been by a full performance of the contracts? The only proof offered by plaintiffs to show that all the ice contracted for could have been sold at retail at the prices fixed is their simple declaration to that effect. It was not shown that they had a particular set or number of retail customers, or that they had an agreement with any one upon which they could have been held responsible. How, then, can it be assumed, as stated, that they could have sold all such ice at the prices named? Their retail trade was entirely |