88 N.Y.S. 479 | N.Y. App. Div. | 1904
The plaintiff in this action is an actress. On the 20th day of' October, 1902, she consigned to herself at Brown’s Point, Astoria,, through the defendant, a trunk containing her theatrical wardrobe. The facts are all stipulated, and there is no suggestion that the defendant had any notice of the contents of this trunk, or of its probable importance to the plaintiff, except that it was delivered into the possession of the defendant at a theatre or music hall in the city of Baltimore, which might, in an action to recover the value of the wardrobe, be of importance as tending to show that the defendant was. in possession of facts putting it upon inquiry, but which can have no bearing upon the question presented in this case. The trunk in-question was forwarded by the defendant, partially through the.Long Island Express Company, and was by the latter offered for-delivery at the plaintiff’s residence on the 21st day of October, 1902, or the day following its consignment, which was a compliance, with its implied contract to forward the same to its destination within a reasonable length of time. It is conceded that the reasonable and proper, charge for this service was eighty-five cents, but. the Long Island Express Company, acting for the defendant,, demanded five dollars and eighty-five cents as a condition of delivering the trunk, and this the plaintiff refused, though offering to pay the eighty-five cents. The agent of the express company thereupon refused to deliver the trunk, and it was held in the custody of the defendant or the Long Island Express Company until the 31st-day of October, 1902, at which time the defendant conceded that, it had made a mistake in the matter and delivered the trunk to the.plaintiff, accepting eighty-five cents for the carrying charges. The plaintiff, it is conceded, had contracts with various clubs and theatres
There are two rules of law which stand in the way of plaintiff’s recovery for the loss of her engagements, either of which is sufficient to justify a reversal of the judgment. The first of these rules is that which imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertion to render the injury as light as possible. (Hamilton v. McPherson, 28 N. Y. 72, 77, and authorities there cited; Jenks v. Quinn, 137 id. 223, 228.) The other is that damages for breach of contract are only those which are incidental to, and directly caused by, the breach, and may reasonably be presumed to have entered into the contemplation of the parties; and not speculative profits, or accidental or consequential losses. (Hamilton v. McPherson, supra, 76, and authorities there cited; Allen v. McConihe, 124 N. Y. 342, 347, and authorities there cited; Rochester Lantern Co. v. S. & P. P. Co., 135 id. 209, 217, and authorities there cited.)- While it is probably true that the burden of proving that the damages which have been sustained in such a case could have been prevented rests upon the party guilty of the breach of contract (Hamilton v. McPherson, supra, 77), the evidence in this case fails to show that the plaintiff has suffered, any damages which she can recover in an action of this character, and the defendant is not, therefore, bound to prove that these damages might have been made less. The-question presented upon this appeal is not what damages the plaintiff might have recovered under proper proofs, but whether, under
The plaintiff was not without remedy; she could have instituted
The judgment appealed from should be reversed, with costs.
All concurred (Bartlett, J.,in result), except Jenks and Hooker, JJ., dissenting.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.