Appeal, No. 330, Oct. T., 1963, from judgment of County Court of Philadelphia, Sept. T., 1960, No. 4951-A, in case of Jagger Brothers, Inc. v. Technical Textile Co. Judgment affirmed; reargument refused April 9, 1964.
David H. Kubert, with him Henry I. Jacobson, for appellant.
Joseph L. McGlynn, Jr., with him Blank, Rudenko, Klaus & Rome, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 640]
OPINION BY MONTGOMERY, J.
This appeal concerns the measure of damages in an action of assumpsit based on a written contract under which appellant agreed to purchase, at $2.15 per pound, 20,000 pounds of yarn to be manufactured by appellee. Appellee manufactured 3,723 pounds of the yarn and delivered it to appellant, who accepted and paid for it. The remaining 16,277 pounds were never manufactured because appellant advised appellee by letter, dated August 12, 1960, that it repudiated the contract and would refuse any future delivery of yarn.
Appellee was awarded $4,069.25 in a non-jury trial, which award was based on testimony offered by appellee that the market price of the yarn was $1.90 per pound on August 12, 1960. The award represents 16,277 times the difference between the contract price and the market price ($.25 per pound). No evidence was offered as to the cost of manufacturing the yarn.
Appellant contends that the proper measure of damages in such cases is the difference between the cost of manufacturing and the contract price; and, therefore, since appellee did not prove its cost of manufacture, it is entitled only to nominal damages.
Appellee contends that it has properly proved its damages under section 2-708 of the Uniform Commercial Code, April 6, 1953, P.L. 3, as amended October 2, 1959, P.L. 1023, § 2, 12A P.S. 2-708, which reads as follows:
[ 202 Pa. Super. Page 641]
"Seller's Damages for Non-Acceptance or Repudiation - (1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2-723) the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach.
"(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), ...