McAlpin against Lee, 12 Conn. 129

Church, J. The plaintiff prosecutes this action on book, acrn¡nst defendant, for the recovery of the price of a quan¿¡ty 0f furaber sold by him to the defendant, and by the defendant received and disposed of.

Auditors were appointed, by the superior court, to adjust the accounts of the parties, who reported, that the lumber in question was delivered upon a special written contract, by which its prices and quality were stipulated ; that the quality of the lumber delivered was inferior to that promised by the contract, and was worth no more than 9 dollars per thousand feet, instead of 10 dollars, the contract price. And this difference the auditors havfe deducted from the amount of the plaintiff’s claim under the contract, leaving due to him the sum of 237 dollars.

In producing this result, the auditors have proceeded upon a principle, which, though formerly doubted, is now well established ; that in an action to recover the stipulated price of property sold, which proves inferior in quality to that bargained for, an allowance to the defendant may be made, in the assessment of damages, of such an amount as constitutes the difference between the price agreed and the value of the estate sold.

And the rule is the same, whether the action be for goods, dec. sold and delivered, or upon the bill or note given for the stipulated price; although in England, in this latter respect, a distinction has been recognized, as we believe, without any substantial difference. Basten v. Butter, 7 East, 479. Okell v. Smith & al. 1 Stark. Ca. 107. (2 Serg. & Lowb. 316.) Germaine v. Burton, 3 Stark. Ca. 32. (14 Serg. & Lowb. 152.) Boulton v. Lattimore, 9 Barn. & Cres. 259. (17 Serg. & Lowb. 373.) Loomis v. Tucker, 4 Car. & Payne. 15. (19 Serg. & Lowb. 255.) Street v.

Blay, 2 Barn. & Adol. 456. (22 Serg. & Lowb. 122.) Cutler v. Close, 5 Car. & Payne, 337. (24 Serg. & Lowb. 348.) 2 Stark. Ev. 645. Nichols v. Alsop, 6 Conn. Rep. 477. Cook v. Mix, 11 Conn. Rep. 432. Spalding v. Vandercook, 2 Wend. 431. Burton v. Stewart, 3 Wend. 236. Reab V. McAllister, 8 Wend. 109. At the hearing before the auditors, the defendant has had the full benefit of this equitable principle ; and, by the award, has been required to pay no more than the real value of the lumbar he received.

But he is not satisfied with this; and now claims a further allowance in reduction of the plaintiff’s demand, to the amount of 175 dollars, as damages, which he supposes he has sustained in the loss of the sale of the_ lumber at a profitable advance; as we infer from the special report of the auditors, and the finding of the court thereon. We have not been referred to any case, nor do we know of any principle, which will sanction this claim.

If the defendant had paid the contract price, and had then instituted his action to recover his damages for the breach of the contract, we are not prepared to say, that in such action the rule of damages would have been such as the defendant here claims; for we do not think the defendant would have been responsible for any collateral loss or damage not naturally resulting from the breach of contract complained of. Gregory v. McDowell, 8 Wend. 435. 3 Wheat. 546. 5 Wheat. 385. Hopkins v. Lee, 6 Wheat. 109. Bell v. Cunningham, 3 Peters, 69. 1 Peters’ Cond. Rep. 538. in notis. 2 Stark. Ev. 359.

Chitt. on Cont. 137. 340. In the case of Gilpins v. Consequa, 1 Peters’ C. C. Rep. 55. the court says : “ In estimating the damages sustained, by a breach of contract, the plaintiff is not to recover what he might have made, had the agreement been literally fulfilled.” In the case of Green v. Pratt, 11 Conn. Rep. 205. we decided, that a claim of damages for the breach of a special contract, could not be recovered in an action on book, either in the character of a charge on book by the plaintiff, or in reduction of charges made by a defendant.

We shall, therefore, advise the superior court, that judgment be rendered in favour of the plaintiff for the sum of 237 dollars, found due by the auditors, without reference to the claim of the defendant founded upon the special finding of the auditor*. The other Judges concurred in this opinion. Judgment" for thé plaintiff.