5 Wend. 535 | N.Y. Sup. Ct. | 1830
By the Court,
To the motion in this case on the part of the defendant to set aside the report of referees on the merits, it is urged as a preliminary objection that the matter in controversy was not referable under the statute. The action is assumpsit, in which the plaintiff claims damages in consequence of the failure in the title to a horse purchased of the defendant. The action is such in which a reference is usually ordered by the court; but it is quite evident we should not have ordered it in this case, because the action could not have involved the investigation of long accounts. The case of Harris v. Bradshaw, 18 Johns. R. 26, is a clear authority however for us to say, that as it is a species of action
It appears to me that the objection to Gordon and Milligan as incompetent witnesses on the ground of interest was not well taken. They had no direct interest in the result of the suit. A judgment in this cause could not be given in evidence to establish any right in either of them. Gordon’s rights had been settled by a judgment against Milligan, and could not be affected by this suit; and if Milligan had a claim against the plaintiff in this suit for a failure in the title to the horse, a judgment here would not have been available to him as evidence to establish that claim. I am therefore of opinion that the referees did not err in permitting these witnesses to be examined.
But they were examined as to the amount of the recovery by the owners of the horse against Milligan. If the damages in this action were to be settled with reference to the amount of that recovery, the record was the proper evidence to establish that amount. The objection to this, part of the testimony (so far as it related to the replevin suit) was well taken ; but it has been removed on the argument by the production of the record. Objections of this kind have frequently been obviated in this manner, and we see no inconvenience in allowing such a course of proceeding.
The ground on which the motion for a rehearing mainly rests is the estimate of damages adopted by the referees. Where the action is for the breach of a contract and no special damages are stated in the declaration, the plaintiff is confined in his recovery to such only as naturally arise from the breach complained of; but if the damages claimed do not naturally arise from that, fact, they cannot be recovered unless they are particularly stated in the declaration, and not then if they are not proximate. Sauncl. Pl. & Ev. 136. Consequential damages may naturally arise from the mere breach of the contract, but they often depend on the peculiar circumstances of the case. Such are allowed without being stated in the pleadings as are the fair, legal and natural