## Facts

- In August 1984, Gem Jewelers, Inc. contracted with Columbia-Art Store Equipment Company (operated by Arthur Dykman) to build and install custom-designed jewelry-store cabinets, cases, and fixtures for Gem’s retail store in Gloversville, New York.
- The agreed price was \$36,000, and the contract called for “solid-hardwood-cherry” fixtures built to plans and specifications prepared by a jewelry-store designer retained for the store renovation.
- Columbia built, delivered, and installed the fixtures in the fall of 1984, and Gem accepted them and put them to use in its store.
- Gem later claimed the fixtures did not match the contract specifications and quality: they were made largely of veneered particle board (not solid cherry hardwood), some veneers were mismatched in color, and workmanship was poor.
- By May 1986, Gem had paid more than \$32,000. Gem then wrote to Columbia’s president complaining about the workmanship and asserting that it ordered and paid for solid cherry hardwood but received veneered particle board.
- Columbia denied that the fixtures were defective and suggested that the unpaid contract balance was enough to cover any items Gem found unsatisfactory; Columbia also offered to forgive the remaining balance rather than replace the fixtures.
- Gem sued for breach of contract, breach of warranty, and fraud. The trial court dismissed the fraud claim, leaving the contract and warranty claims for the jury.
- Columbia asserted a counterclaim seeking about \$3,000 as the unpaid contract balance.
- The jury found for Gem on liability, rejected Columbia’s counterclaim, and awarded Gem \$40,000 in damages, based on evidence of the cost to replace the fixtures with conforming solid-cherry fixtures.
- Columbia appealed from the judgment entered on the verdict.

## Issues

1. Whether the jury’s liability verdict for breach of contract and breach of warranty was against the weight of the evidence where the parties disputed what the contract required and whether the fixtures were defective.
2. Whether, under U.C.C. § 2-714, the trial court properly allowed the jury to measure damages using the reasonable cost to replace the accepted, nonconforming custom fixtures, rather than limiting damages to a strict “difference in market value” calculation.

## Decision

- The Appellate Division, Third Department affirmed the judgment for Gem Jewelers.
- The court held that the jury’s liability findings were supported by a fair interpretation of the evidence, and the verdict would not be disturbed given the jury’s role in resolving credibility disputes.
- The court upheld the \$40,000 award, concluding that the proof permitted the jury to use replacement-cost evidence as a reasonable way to quantify the buyer’s loss for custom fixtures under U.C.C. § 2-714.
- The court left intact the jury’s rejection of Columbia’s counterclaim for the unpaid balance.

## Legal Principles

- A buyer who accepts goods may still recover damages for breach of contract and breach of warranty when the goods do not conform to the agreement. (U.C.C. § 2-714)
- The usual measure under U.C.C. § 2-714(2) is the difference, at the time and place of acceptance, between the value of the goods as accepted and the value they would have had if they had been as warranted.
- For specially made, custom goods with limited market comparables, repair or replacement cost may be admissible as a reasonable way to prove the buyer’s loss and may serve as practical evidence of the statutory “difference in value.”
- An appellate court will not set aside a jury verdict on liability when it is supported by a fair interpretation of the evidence, even if there is conflicting proof.
- A jury’s damage award will be upheld when supported by the record and not excessive under the governing standard of review.

## Conclusion

Gem Jewelers v. Dykman affirmed that when a buyer accepts custom-made store fixtures that materially depart from contract specifications, the buyer may recover damages under U.C.C. § 2-714, and in a case involving custom fixtures where market-value proof is not workable, the reasonable cost to replace the goods with conforming fixtures can be used to measure the buyer’s loss; the Third Department therefore affirmed the jury’s liability finding, the \$40,000 replacement-cost award, and the rejection of the seller’s counterclaim.


Gem Jewelers v. Dykman, 160 A.D.2d 1069, 553 N.Y.S.2d 890 (1990)