App. Div.] MERRELL, J.: First Department, December, 1920. The action is brought to recover damages for the alleged breach of a contract for the sale of 2,000 tons of sugar. The contract in question is alleged to have been made on the 30th day of August, 1919, and is evidenced by a letter written by the the defendant to Messrs. B. A. Kueckler Company, plaintiff's brokers, under the above date, which letter reads as follows. NEW YORK, Aug. 30, 1919. "Messrs. B. A. KUECKLER Co., "130 Pearl St., "New York City: "GENTLEMEN.- We hereby confirm our agreement of August 29th, to purchase through you from Mr. R. D. Sheldon, 366 Lexington Ave., New York City, 2,000 tons of Extra Turbinated Sugar at $10.60 f.o.b. Havana, Cuba, delivery before October 31, 1919, confirmed, irrevocable credit for which has to be established not later than closing of banking hours, September 10, 1919. Yours very truly, "ARGOS MERCANTILE CORP., "(Signed) M. E. HIDDEN, The answer admits the making of the agreement set forth in the complaint. After setting forth the agreement, the complaint alleges that the plaintiff has duly performed all of the conditions of the contract, except insofar as prevented therefrom by the defendant, and defendant's refusal to accept the merchandise described in said contract," and that "defendant has wholly failed and neglected and refused to accept the merchandise described in the said contract annexed hereto and marked Plaintiff's Exhibit A, and to pay therefor, and has likewise failed, neglected and refused to establish the credit, as required by the terms of said contract." Upon the opening of the trial, defendant's counsel moved to dismiss the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The motion was denied, and the appellant now claims that such denial was error. While the complaint is certainly open to criticism, the appellant raises no objection, except that it fails to allege First Department, December, 1920. [Vol. 194. a consideration for the defendant's agreement therein set forth, and that such agreement is unilateral. Such objection I think, is not well founded, and the trial court was justified in denying defendant's motion to dismiss. The facts material to the determination of the issue are a's follows: The plaintiff, Rex D. Sheldon, at the time the contract was made, was operating in the Cuban sugar market, and testified that he had so operated for a period of two or three months. He was in Havana at the time, and in this transaction was represented in New York city by the aforesaid firm of brokers, B. A. Kueckler Company. The plaintiff claims that at the time the agreement was made he had an option or some other arrangement of a like nature for the purchase of the sugar in question with a Cuban firm known as Galban, Lobo & Co. The arrangement which plaintiff had with such company is claimed to have dated back to the early days of August. Prior to August thirtieth plaintiff obtained a permit or license from the United States Equalization Board to ship 2,000 tons of sugar from Havana to France. While the original permit was not placed in evidence, plaintiff was allowed to testify that he had the aforesaid arrangement with Galban, Lobo & Co., and that he held the aforesaid permit. On August 26, 1919, a letter was written to the plaintiff's brokers by a representative of the Royal Bank of Canada, which is as follows: "THE ROYAL BANK OF CANADA Incorporated 1869. "Corner William & Cedar Streets. "NEW YORK, August 26, 1919. "MESSRS. B. A. KUECKLER & COMPANY, "130 Pearl Street, "New York City: "GENTLEMEN.- We beg to advise that we have received the following telegram from our Havana Branch: "Please inform Raymond Trigger pursuant to his cable to Sheldon we hold letter from Equalization Board, Cuban Committee, reading as follows: At the request of Mr. Sheldon we hereby state that acting under instructions of the United States Sugar Equalization Board, Inc., we are willing to sell him in Havana 2,000 tons turbinated sugar extra of Central App. Div.] First Department, December, 1920. Providencia turbinated by the Cia Azucarera de Guines at the price of f.o.b. steamer Havana, Messrs. Galban Lobo & Co. will deliver the sugar collecting same under the terms of cash. Opening confirmed Banker's Credit favor of Messrs. Galban Lobo & Co. before the expiration of this option expires August 30th, 1919. We will permit shipment of this sugar from Havana to any port in France at the buyer's option. Shipment to take place from now to the end of October. Above mentioned price to be understood net for the sellers Messrs. Galban Lobo and Co. and accruing to the United States Sugar Equalization Board, Inc.' "Please note that we quote the above without any responsibility whatever to this Bank. "Yours truly, "B. ANDERSON, It is to be noted that nowhere in this letter is the price of the sugar set forth, a blank space being left. The plaintiff testified that the price was intentionally left blank. After receiving the above letter a representative of the B. A. Kueckler Company took the matter up with the defendant, and the aforesaid letter of August thirtieth confirming the understanding between the parties was written. At this time the plaintiff was still in Cuba, and personally had nothing whatever to do with the making of the contract, except certain instructions which he gave from time to time to his brokers. In the letter of August thirtieth the defendant agreed to establish irrevocable credit not later than the closing of banking hours on September tenth. The plaintiff contends that the defendant violated the contract by failing to establish credit as therein agreed. The defendant admitted that no such credit was established, but asserts that before the tenth of September Kueckler and one Raymond Trigger, members of the aforesaid firm of brokers, both representing the plaintiff, called upon the defendant and demanded a cash payment of $50,000. It is admitted by both of these agents that such a demand was made. The defendant's officers testified that when the demand was so made and refused, the plaintiff's said agents stated that the deal was off, and that, for that reason, no First Department, December, 1920. [Vol. 194. attempt was made by the defendant to establish the credit provided for in the contract. While the plaintiff's agents admit that they did demand the cash payment of $50,000 several days prior to the tenth of September, still both of these agents deny that they formally declared the contract to be at an end, but testified that they simply went to the defendant in a friendly manner in order to obtain such advance payment as an accommodation. The evidence clearly shows that the sugar in question was in great demand, and that the market was rising. Cablegrams from the plaintiff to his agents show that he desired to close the deal in Cuba for the sale of this same sugar and was awaiting the consummation of the transaction with the defendant with apparent reluctance. The plaintiff testified that the 2,000 tons of sugar in question was practically the only sugar then available for export, and could readily have been sold at Havana for a price from ten and one-half cents per pound to eleven cents per pound. The contract price was $10.60 per 100 pounds. And upon the plaintiff's own testimony he could have sold the sugar upon the date of the alleged breach in Havana, where the sugar was to be delivered, at a price exceeding that which the defendant agreed to pay. Upon this point the plaintiff's evidence is as follows: "Q. Now, you say that the market price of sugar in Cuba on September 10th was 1012 or 11 cents a pound? A. Yes, sir. Q. And your contract with the defendant was to sell the sugar to them at 10.60, is that correct? A. To the Argos Mercantile? Q. Yes. A. It was. Q. In other words, you could sell that sugar in Cuba on September 10th at 10.60, could you? A. I could. Q. No trouble about that? A. Yes, sir. Q. Why didn't you? A. Because I preferred to get financed and take it to France, for I thought I could make a better sale, the same as you had proposed." While the plaintiff is now suing to recover large damages from the defendant, and has recovered the sum of $71,744.30 herein, on the date the contract is claimed to have been violated by defendant, at Havana, where the sugar was to be delivered f. o. b., the plaintiff could have sold the sugar, if he actually had it, for at least as much as the defendant agreed to pay. Instead of this the plaintiff, as he says, desired to speculate and entered into an arrangement with one Emilio First Department, December, 1920. App. Div.] Lopez Vazquez, of Santiago, on September thirteenth, wherein the plaintiff assigned to Vazquez a two-thirds interest in his alleged contract for the sugar, Vazquez agreeing to finance the enterprise and the parties agreeing to share the profits, Vazquez to receive two-thirds and the plaintiff one-third. The sugar was to be shipped to France in accordance with the permit and there sold, and, as admitted by the plaintiff, large profits were expected to result. The permit under which this sugar was shipped is dated September fifteenth and is claimed to be a renewal of a prior permit. The venture thus undertaken partially failed on account of the loss at sea of a part of the sugar which was shipped upon the steamship Venetia, and the damages which plaintiff has recovered are the direct result of such failure. The court permitted the plaintiff to testify that he had made the arrangement to purchase the sugar in question for $8.522 per 100. Under the contract with the defendant the plaintiff was to receive $10.60 per 100. The profit which the plaintiff says he expected to relize upon the sale to the defendant was, therefore, $96,637. The plaintiff claims that because of the loss of the steamship Venetia and by reason of the assignment of two-thirds of the contract, he has realized only $24,992 or thereabouts as profits from the venture which he entered into with Vazquez, and that the defendant should pay the difference. The plaintiff also claims that he spent large sums of money in hotel bills, cables and traveling expenses incident and necessary to marketing the sugar, and that the minimum of such bills and charges amounted to the sum of $3,750. The court charged the jury that if the plaintiff was entitled to recover any sum whatever it must be the sum of $71,744.30, and that if the jury believed the plaintiff's testimony in respect to the aforesaid expenditures, the jury might also find additional damages in the sum of $3,750. The appellant contends not only that the complaint should have been dismissed, as above stated, at the opening of the trial, but should have been dismissed at the close of all of the evidence for lack of any proof of damages, and also that the trial court erred in submitting the wrong measure of damages to the jury and in the reception of incompetent evidence. The complaint was an ordinary complaint for the breach |