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App. Div.]

First Department, April, 1908.

to release the company from all damage, past and future, by reason of their impairment. The grantee, disregarding this reservation, himself released for a lump sum, which this court determined he held for the benefit of his grantor, irrespective of the impossibility of reserving the easement out of the fee, interpreting the reservation as a general one of all damage, past and future. The reservation considered in Pegram v. Elevated R. R. Co. (147 N. Y. 135) was of "all damages and claims for damages now or hereafter caused said property or the present and future owners thereof; " and that in McKenna v. Brooklyn Union El. R. R. Co. (184 N. Y. 391), the effect of which was not passed upon, was much broader than the reservation now under consideration, and more nearly like the one in the Freund case, above referred to.

It is true that in the present case "any and all rights of actions, damages and claims" for the erection and maintenance of the structure are reserved, but in view of the fact that the only damage which plaintiff had suffered was that which had accrued to his property at the time he made his conveyance, we think the reservation cannot be said to include rental damage sustained after he had parted with his title.

If the defendants had recovered any rental damage accruing before they received their deed, quite another question would be presented, and very likely plaintiff would be entitled to the amount which they had received. They did not recover any rental damage, however, prior to the time they took title, and only such as was found to have been suffered after they became owners of the property. In that recovery the plaintiff had no interest, and the judgment must be modified in that respect.

We think, also, the defendants were entitled to credit for all they paid their attorneys in prosecuting the action and such sums as they contributed towards employing counsel in the United States Supreme Court. Such payments and disbursements appear to have been made in good faith. The contract to allow the attorneys onethird of the recovery and disbursements was not an unreasonable one, nor was it improper to add interest to the amount awarded before division. The interest followed the judgment and together they formed at the end of the litigation the total recovery had. The amount finally paid was properly treated as the recovery in the

APP. DIV.- VOL. CXXV. 34

[Vol. 125.

First Department, April, 1908. action, and one-third of that amounts practically to the same sum the attorneys charged computed by taking one-third of the $5,000 and adding interest to it.

In the action which the plaintiff himself instituted he agreed to pay the same attorneys one-half of the recovery, and he cannot complain of the lesser amount which the defendants in good faith paid to secure the judgment which inured to his benefit. Nor can the plaintiff find fault that the defendants recovered no rental damage accruing to the premises before they received their conveyance and while he himself held title. He reserved those damages to himself as well as the fee damage, and even if the defendants had any right at all to recover then they were under no obligation to do so.

We have examined the points urged by the defendants and we find no errors calling for a reversal of the judgment. The reservation clause was not ambiguous and it was not open to the parol explanation sought to be given. There was no allegation that it was inserted in the deed by fraud or mistake, or mistake on one side and fraud on the other. It was complete in itself and oral testimony to change its terms or show the intention of the parties other than as expressed in the instrument was improper and was properly excluded by the court.

The judgment should be modified by deducting therefrom such part of the rental damage as was allowed, and also such disbursements to attorneys and in the United States court proceeding as pertained to the recovery of fee damages and were disallowed, and as so modified should be affirmed, without costs to either party.

PATTERSON, P. J., and Scott, J., concurred; INGRAHAM and LAUGHLIN, JJ., dissented.

LAUGHLIN, J. (dissenting):

I dissent from so much of the decision of this court as eliminates from the recovery by the plaintiff the award for damages to the rental value of the property between the date of the conveyance and the date of the decree. If, prior to the conveyance, rental damages had been sustained, against which the Statute of Limitations had not run, a cause of action therefor at law was vested in the grantor which remained in him for the trespass upon his easements down to the date of the conveyance. (Pegram v. Elevated

App. Div.]

First Department, April, 1908.

R. R. Co., 147 N. Y. 135.) This cause of action, if any, was not assigned to the grantee. As I view the reservation of damages contained in the deed, the grantor, in effect, conveyed the premises for the consideration specified precisely the same, so far as the rights of the grantee were concerned, as if immediately prior to executing the deed he had released to the railroad company all claims for damages to the easements. It was evidently the intention of the parties that all right to damages should be reserved by the grantor precisely the same as if those damages should ultimately be fixed as of the date of the conveyance. The fee and rental damages recovered together in effect constitute the damages to the fee on the date of the conveyance. Owing to the fact that it was necessary to bring the action and that time elapsed between the date of the conveyance and the date of the decree, the damages were not all awarded in form as fee damages, but as rental and fee damages, the former being for the trespass to the date of the decree, and the latter being the damages for all future time after the date of the decree, which are ascertained by determining the value of the land with and without the injury to the easements.

The Court of Appeals, in the opinion of Pegram v. Elevated R. R. Co. (supra), expressly say, in refusing to award rental and fee damages to the grantor for the period subsequent to the date of the conveyance, on account of the fact that the right of action therefor had passed to the grantee who was not a party to the suit, that if the reservation was to be operative at all, the grantee became, as the holder of the legal title, "a trustee for the plaintiffs with respect to any damages which might be recovered of the defendants, for the injury occasioned to the rental and fee value of the property through an action brought in his name, or wherein he was joined as a party." In Western Union Telegraph Company v. Shepard (169 N. Y. 170), where it was assumed that the grantor assigned to the grantee the right to bring the action for past damages in reserving both past and future damages, it was held that the grantee became a trustee for the grantor as to all such damages, both past rental damages, future rental damages and fee damages. This court, in Freund v. Biel (114 App. Div. 400), in reversing the trial court in holding that the grantor was not entitled to recover the amount received by the grantee in settlement for both rental and fee dain

[Vol. 125.

First Department, April, 1908. ages, held in effect that as to all of the damages the grantee became a trustee for the grantor. There was the same authority for awarding to the plaintiff the damages to the rental value or for the trespass between the date of the conveyance and the date of the decree, as for the damages awarded in form as fee damages. If, as is about to be held by this court, the grantor cannot reserve the damages that may be recovered for the trespass which are awarded as for loss of rental value, then the grantee by bringing actions at law for trespass from time to time and not praying for an injunction and for a permanent award for damages to the fee in lieu thereof, may wholly defeat the rights of the grantor.

INGRAHAM, J., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.

HERMAN ISAACS, Respondent, v. TERRY & TENCH COMPANY,

Appellant.

First Department, April 10, 1908.

Sale - goods to be manufactured

measure of damages.

Upon the breach of an executory contract for the sale of a chattel the vendor has three remedies - to store the property for the vendee and sue for the purchase price; to sell it as agent for the vendee and recover any deficiency, or to keep the property and recover the difference between the contract price and the market value.

On the vendee's breach of a contract for the sale of goods to be manufactured, before they are manufactured, the measure of damages is the difference between the cost of manufacture and delivery and the contract price.

It may be shown that the vendor sold a portion of the manufactured articles after the commencement of the action, and the profits he made upon the sale should be deducted from his damage.

APPEAL by the defendant, Terry & Tench Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of November, 1907, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 29th day of May, 1907, upon the

App. Div.]

First Department, April, 1908.

verdict of the jury, and an order of said City Court entered in said clerk's office on the 3d day of June, 1907, denying the defendant's motion for a new trial made upon the minutes.

George H. D. Foster, for the appellant.

Herbert J. Hindes, for the respondent.

MCLAUGHLIN, J. :

The correspondence between the parties established an agreement by the defendant to purchase of the plaintiff certain iron or steel beams, to be used in the construction of a building in the city of New York, at one dollar and eighty-five cents per 100 pounds on steamship dock, New York, specifications to be furnished by defendant. Parol evidence was introduced to determine the amount contracted for, which the jury found to have been 500 tons. The plaintiff admits having sold 200 tons of the beams, with the permission and consent of the defendant, and this action was brought to recover damages for the defendant's refusal to furnish specifications for, or to accept and pay for the remaining 300 tons.

The evidence introduced by the plaintiff at the trial, though somewhat unsatisfactory, tended to establish that in January, 1906, he had ordered from certain manufacturers in Germany a large quantity of beams, to be made according to specifications to be furnished and to be paid for as manufactured. Upon making the contract with the defendant in May, 1906, he checked off the 500 tons called for by the contract against the amount he had ordered from the mills. In August, 1906, the defendant repudiated its contract, no specifications having been furnished, and this action was commenced in September following. There was also evidence from which the jury might, and apparently did, find that the plaintiff made a bona fide effort to secure an order for the 300 tons which the defendant refused to take and finally succeeded in selling the same as part of a larger order to a firm in San Francisco, Cal. The 300 tons were delivered f. o. b. steamship Antwerp, for which he received $10,200, or $900 less than the contract price with the defendant f. o. b. dock, New York. The jury found in favor of the plaintiff for $900. Judgment was entered thereon, the validity of which is attacked upon the ground that the measure of damage adopted was improper.

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