Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Defendant appeals from a county district court judgment taken against him for breach of contract. Contract and breach are admitted or assumed on appeal; the only issue is damages.
Under the contract plaintiff leased to defendant an automatic phonograph, a juke box, for two years and agreed to supply records and replace parts wearing out. Proceeds of the operation were to be shared on a specified basis, but with a minimum of $20 per week to be paid plaintiff by defendant. Defendant, it is claimed, repudiated the contract; and plaintiff never installed the machine.
The court gave plaintiff judgment for $836 -- that is, the sum of $20 per week for two years, less apparently the costs
plaintiff would have been put to, had he performed the contract, less also depreciation on the machine.
Defendant makes two points. The first rests on plaintiff's testimony that the component parts of the very machine he had intended to lease defendant were, after the breach, rented to others. Defendant argues that the amount plaintiff thus realized should have been credited on the claim sued upon.
Defendant would have us apply here the rule obtaining on the breach of an agreement to lease realty; that is, he claims the measure of the lessor's damages here is the difference between the agreed rental and the rental value of the property. His contention further is that even though under the agreement before us, the lessor is obliged to perform some personal services, he, in order to establish the rental value, has the burden of proving what he received on a reletting. But see McDermott v. DeMeridor Co. , 80 N.J.L. 67 (Sup. Ct. 1910 -- the point was not passed upon on the appeal, 82 N.J.L. 530 (E. & A. 1911)) referring to Milage v. Woodward , 186 N.Y. 252, 78 N.E. 873 (Ct. App. 1906) where a canal boat, captain-owner, crew and horses were hired; note 17 A.L.R. 2 d 968, 972, 990. All this raises questions we need not consider.
Plaintiff, passing the questions (or most of them), meets the argument by referring to his testimony, not contradicted, that:
"The equipment called for by this agreement was readily available in the market. But locations were very hard to get."
We think the position plaintiff takes on the matter is sound. Where, as here, a plaintiff lessor agrees to lease an article of which the supply in the market is for practical purposes not limited, then the law would be depriving him of the benefit of his bargain if on the breach of the agreement, it required his claim against the lessee to be reduced by the amount he actually did or reasonably could realize on a reletting of the article. For if there had been no breach and another customer had appeared, the lessor could as well have secured another such article and entered into a second lease. In case of the
breach of the first lease, he should have the benefit of both bargains or not -- in a situation where the profit on both would be the same -- be ...