majority">Cardozo, J.

I think the rule of damages laid down at the trial was erroneous. I do not understand, and can find no authority for the proposition, that a mere negotiation for an amicable settlement of a disputed claim has the effect, in the absence of any agreement upon the subject, to alter, or postpone, the legal rights of the parties as 'they existed when the breach of contract took place. Nothing took place which could have prevented the plaintiffs iVom suing immediately. Their legal right to do so was not affected by the negotiation. The breach occurred on the 10th of January, 1866, when -the defendants absolutely refused either to perform the contract on their part, or to receive performance from the plaintiffs, and 'notified the plaintiffs to that effect. The question is, what is the proper measure of damages. The defendants were under contract to take certain oil and pay a stipulated price, and in such a case, upon breach of the contract, I understand *572the rule to he well settled,-that the measure of damages is-the difference between the contract price and the value of the property at the time of the breach. (Havemeyer v. Cunningham, 35 Barb. 515. Norton v. Wales, 1 Rob. 561.) Since writing the above, the counsel for the respondents has directed our attention to the case of Ogle v. Vane, (3 Law Rep., Q. B. Cases, 272.) The general rule, as to the measure of damages, is recognized in that case to be as I have stated it; but a different rule was applied there, upon grounds quite distinct from ■ any that this case presents. In that case there was evidence that the defendants 'requested delay for their benefit, to enable them to substitute other iron in place of that which they had contracted to deliver, Ixut could not; and the plaintiffs acquiesced in the request. It was a clear extension of the time of performance.

[First Department, General Term, at New York,January 1, 1872.

Here the only proposition was to leave out the matter to arbitration; to settle it without a lawsuit. That is a very different thing from granting delay to enable a party to perform a contract, either as originally existing’ or by, substituting something which the other party was willing to accept.

The judgment should be reversed, and a new trial ordered; costs to abide the event.

Ingraham, P. J., concurred.

tirEO. G-. Barnard, J., (dissenting.)

The only question for examination, in this case, was that as to the proper rule of damages. That, I think, was properly laid down by the judge, in his charge to the jury. I find no other error, in the case.

The judgment appealed from should be affirmed.

Hew trial granted.

Ingraham, P. J., and Cardozo and Geo G. Barnard, Justices.]

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