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Feldman v. Branfman

Decided: May 15, 1933.


On appeal from the Supreme Court.

For the defendant-appellant, Benjamin L. Stein.

For the plaintiffs-respondents, Milton M. Unger.


The opinion of the court was delivered by

HEHER, J. This is an appeal from a judgment entered upon a verdict awarding plaintiffs $4,085.72, in an action for breach of contract. The contract was in writing, and thereby defendant, a manufacturer of kosher food products, agreed to sell to plaintiffs, and the latter agreed to purchase from defendant exclusively, "all the meat products and other 'Branfman' products required" by plaintiffs to carry on the kosher delicatessen business in the city of Paterson. The agreement acknowledged the deposit by plaintiffs with defendant of $1,000, as security "for the faithful performance" of the terms thereof. It was expressly provided that in the event of a breach of the agreement by plaintiffs, the sum so deposited should belong to defendant as liquidated damages, and in case of full performance, it should be returned to plaintiffs.

The complaint is in two counts. The first alleges that defendant breached the agreement, in that it refused to sell or deliver the stipulated goods to plaintiffs, and seeks recovery of lost profits, advertising expenses incurred, and the cost of setting up an organization to market the merchandise. The second count demands the sum posted as security.

Defendant filed an answer denying the alleged breach, and setting up, by way of defense, (1) a breach of plaintiffs' express covenant to purchase the designated food products only from defendant, and as a result the forfeiture of the sum deposited as security; and (2) default by plaintiffs in the payment of the purchase price of goods sold and delivered under the contract; defendant's election to consider it a breach of the agreement, and notice of such election to plaintiffs. By counter-claim defendant sought the recovery of $440.42, the price of goods sold and delivered under the agreement.

The trial judge charged, in substance, that the measure of the buyer's damages for the failure of the seller to deliver the goods which formed the subject of the contract, is the loss directly and naturally resulting, in the ordinary course of events, from the seller's breach of the contract, and that where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver. This is the rule prescribed by the Uniform Sales act of 1907. 4 Comp. Stat., p. 4663. The applicability of this rule is not controverted by appellant.

Plaintiffs contended that the goods had a peculiar character, or quality, and were not procurable in the open market. The question of the existence of an available market was submitted to the jury as an issue of fact. Specifically applying the rule for the admeasurement of damages, the court charged that, in event there was no available market, plaintiffs were entitled to recover lost profits, expenses incurred for advertising, and the cost of preparation for the marketing of the goods to be delivered under the contract. The legal soundness of this instruction was not challenged by appellant at the trial, and it was not made the subject of a ground of appeal.

Appellant's first contention is that the trial judge erroneously overruled objections to questions framed to elicit, for the purpose of computing the alleged lost profits, evidence of the profit made by respondents from sales of goods actually delivered by appellant, and those of like character, in the normal course of their business. The rulings on these questions are not properly before us. The grounds of appeal do not state the name of the witness to whom the questions were put. It is a well-established rule that the grounds of appeal in cases of rulings on evidence should state the name of the witness, and the questions or answers objected to and

ruled upon by the trial judge. Ciccone v. Colonial Life Insurance Co., 110 N.J.L. 276; 164 A. 444. Furthermore, the objections here advanced were not presented to the trial judge, and therefore this assignment lacks efficacy. Grounds of objection to the admission of evidence not presented to the trial court will not be considered on appeal. Schreiner v. New York and New Jersey Tel. ...

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