majority">Spring, J.:

The defendant was the manufacturer of a certain style of hats, known as the Knox, and for sixteen years the plaintiff had been his exclusive representative in the city of Buffalo. Their course of dealing had been for the plaintiff. to order in the fall or winter of each year such hats as he desired- for the forthcoming season, and whatever were required for immediate use were shipped promptly while the bulk of the order was filled at later dates. On the 22d of September, 1896, one Stinemetz, who was taking orders for the Knox hats, obtained from plaintiff an order for sixty and one-half dozen of this brand. Three and one-half dozen were for immediate delivery, but the principal part of the purchase was to be *147delivered in February and March by separate shipments. The order was received by the defendant and the three and one-half- dozen delivered at once and paid for by the plaintiff. On November second following Stinemetz again took three, orders ofi plaintiff for thirty-eight dozen of the Knox hats, three dozen of which were for' immediate shipment, but the balance were reserved for delivery in • April. This order was -received by the defendant and the goods, ordered for prompt shipment were delivered and paid for. In December of that year the - defendant revoked the authority of the plaintiff to act as his agent, but the plaintiff testified that in December of that year, or in January following, he received a postal card from the defendant inquiring what leathers he desired placed in the hats, and the defendant replied giving the information sought. Upon this testimony, with other, the trial court submitted to the jury the question whether there was ah acceptance of these orders by the defendant, and the verdict determined that proposition in favor of the plaintiff.

While the defendant could terminate plaintiff’s agency at will, that did not authorize .him to refuse to perform his contract. The force of his acceptance of these orders, especially when conjoined with their partial delivery, was an agreement on his part to deliver the hats in compliance with the .orders made by Stinemetz, and which were accepted and ratified by him. This proposition and others pertaining to the liability of the defendant are exhaustively discussed in the dissenting opinion of Mr. Justice McLennan, and further reference to them here is unnecessary.

The serious difficulty in the case arises over the question of damages. The trial judge recited briefly, but very fairly, the voluminous testimony pertaining to the subject and then made the following statement of the law: “ This is all the evidence, as I recall, gentlemen, given upon the subject of damages. You will take into account in determining this question what the profit to Mr. More would have been had he sold all the hats, and in connection with that you will take into account the probabilities as to how many of the hats he could sell and how many would have to be carried over beyond the season, when, according to the' whole testimony in the case, they would be worth less. You are to take into account the probabilities as to his losing some accounts'.. You will take into *148account, also, as to whether his demand for Knox hats was supplied by any other brand of hats, whether Miller or some of the other brands which he had on sale. All these things are to be taken into account, and. then you will determine from all this testimony as reasonable men what damage he has suffered by reason of the breach' of this contract, should you iind that a contract -existed. '

“I do not kno'w that I. can add anything to make clearer to you the rules which will govern you in the disposition of this case. If, under the rules of law which' I have laid -down, you find, that there was no contract between Mr. More and Mr. Knox for the goods undelivered, then your verdict would be no cause of action. ■ If you find under those rules, however, after a fair consideration of the evidence, that there was a contract for these goods which were not delivered, then you will find a verdict for the plaintiff' for such damages as you believe he is reasonably entitled to under the rules governing damages, which I have called to your attention.”

The counsel for the defendant, at the close of the charge, made the following request: “ I ask your honor to charge the jury that even were a contract made out, that still plaintiff must prove by a fair preponderance of evidence that he has sustained damage, and if the jury believe all there is to it is there is a possibility he might have been damaged, but the probability is that he sold Miller hats and other hats to his customers in place of Knox hats, so that his sales in fact were not cut down, he was not damaged, that then they will bring in a verdict for the defendant.” The court complied with this request.

There was no exception to the rule of damages adopted by the court, and every proposition enunciated had evidence to support it. The defendant was evidently satisfied with the instruction given, and unless the jury exceeded what the evidence warranted, it is not the province of this court to interfere with the verdict.

The general rule of damages for breach of contract of sale undoubtedly is that the vendee is entitled to recover the difference between the contract price and the market value at the time and place of delivery. (Saxe v. Penokee Lumber Co., 159 N. Y. 371; Todd v. Gamble, 148 id. 382.)

This measure is supposed to afford adequate indemnity to the party damaged and still be just to the party responsible for the *149injury. In this case the court was not requested to make the rule referred to the sole measure by which the parties’ rights were to be determined. The parties apparently assented to the more relaxed rules submitted for the guidance of the jury, and they ought not to be heard to complain now.

It is true that it is incumbent upon the buyer, where the article has a market value at the time and place of delivery, to lessen the damages he has sustained by the breach by endeavoring to replace whát the vendor has failed to deliver to him. (See cases last cited.)

The plaintiff could not purchase any Knox hats in Buffalo, at least at wholesale; the sole agency for their sale had been transferred to another dealer, a fact generally known to local purchasers. Had he attempted to buy of Georger he must pay the retail price. That made the market value for him if he endeavored to replace the goods which the defendant had declined to furnish him. There was, ■therefore, no infringement upon the general rule stated for the ascertainment of damages. The plaintiff did handle other first-class hats, notably the Miller hat, which he testified was equally as good as the Knox hat. The fact that he continued to sell other hats as valuable as the Knox did not prevent him from recovering what he would have gained by the performance of the agreement by the defendant. The Knox hat is of a high grade, and many men wear no other. Plaintiff might have sold as many Miller hats as lie would have formerly sold of those furnished him by the defendant and still have suffered measurably by.the omission of the defendant to fulfill the contract of sale. He lost customers who preferred the Knox hats. ' The plaintiff stipulated in writing that he would not sell any of the “ first quality silk hats containing the Knox die, for less than eight dollars each; nor any first quality stiff hats containing the Knox die, for less than five dollars each.” The profit, therefore, of those sales during the season could be arrived at with reasonable accuracy. The cost of the undelivered hats in both purchases aggregates $2,694, and had those been delivered and all sold in the season the plaintiff might have realized as profits $2,043, and the jury measured his damages at $1,317.74. In 1896 plaintiff’s sales of the Knox hats amounted to $6,183.51, and the quantity of hats left over each year was given approximately so that the jury had all the facts before them to ascertain the extent of the damages *150sustained by the plaintiff. The point pressed so strenuously,, that plaintiff’s sales did not diminish by reason of the fact that, he was not selling the Iinox hat, may not have been a very potential circuim stance against him. ■ Georger, another dealer in Buffalo, was given the exclusive sale of these hats. He testified that “ in 1897 that hat had a good demand in the city of Buffalo and it has had ever since.” Plaintiff might have sold all the Knox hats he had ’ ordered of defendant and still kept up the sale of the Miller and Heath hats; The hats of this brand which Georger sold, it is fair to assume, plaintiff could have sold. The plaintiff might have purchaséd a stock of dry goods or boots and shoes, and his ¡unfits might have been greater by virtue of these additional lines, than during the preceding year from.the Knox hats, but that would not prevent him reaping the benefit of his agreement.

In view of the fact that plaintiff could not obtain the Knox hats in Buffalo except at the retail price, which was fixed and definite, it was entirely proper to prove all the facts. The extent of the. sales e&ch year of these hats, the quantity ordinarily left unsold,.the disposition made of it, the extent to which the- damages were remedied by the sales of other brands, were distinct facts for the enlightenment of the jury. With these facts before the’ jurors it was for them to work out a fairly adequate compensation to the plaintiff for the loss he had sustained by the defendant’s breach. This course was adopted and without criticism when submitted to the jury. - The elements going to make up the sum total of the damages were not speculative* but fairly ascertainable, and the method followed is well sustained by the authorities. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205 ; Dickinson v. Hart, 142 id. 183, 188; U. S. Trust Co. v. O’Brien, 143 id. 284; Crittenden v. Johnston, 7 App.,Div. 258.)

The evidence sustains the conclusion reached by the jury. We might submit the facts to a mathematical analysis and determine that a less recovery would have been more satisfactory to us, but out of the series of facts presented the jury have fixed the measure of defendant’s liability, and the verdict should stand.

As was said in the case of Layman v. Anderson (4 App. Div. 124): “ We have examined the record and the evidence, and may have formed our judgment as to what the verdict should have been, *151but it must be remembered that if the case was one for the jury the verdict was not to be the verdict of the trial court, or of this court, but of the jury, and the question is not whether the trial court was, or this court is, satisfied with the verdict, but whether it is a case in which the parties had a right to the judgment of twelve men as to the facts. If the. verdict of a jury may be set aside in any case where the court is not satisfied with it, if the court must be satisfied as well as the jury, then the court may as well dispense with the jury altogether and make the decision itself. The jury is entirely useless and unnecessary. This is not of course the rule. When the case is one that should properly be submitted to the jury, its verdict must stand whether it is satisfactory to the court or not.”

During the trial the counsel for the defendant objected to the reception of the testimony tending to show the value of these hats at retail in the city of Buffalo on the ground that it was not competent, and that it was ■ not the proper measure of damages. The evidence was received and an exception taken. As already stated, the only possible way by which plaintiff could refill his orders, if at all, was by purchasing of Georger at retail. That, therefore,, constituted the market value of these particular hats if plaintiff expected ■to continue selling them. It is patent, however, that plaintiff could not buy hats of this brand anywhere after Georger had succeeded him. It was, therefore, competent" to prove any fact or circumstance pertaining to their value in order to enable the jury to ascertain in the best possible manner what the value of these hats was and to adjust the damages which plaintiff had sustained.

This proof did not establish the measure of damages, but it was a fact of more or less cogency td be considered by the jury, and the learned trial judge so construed it in submitting it to them.

Ho objection was made that this testimony was inadmissible under the complaint. Had that criticism been made the difficulty .could have been remedied by amendment, and it is too late now to be available to the appellant.

Judgment affirmed, with costs to the respondent.

Adams, P. J., and Laughlin, J., concurred; MoLesotam", J., dissented in opinion ; Williams, J., for reversal.

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