2 Conn. 485 | Conn. | 1818
Lead Opinion
Where a man-contracts to deliver any ar - ticle besides money, and fails to do it, the rule of damages is the value of the article at the time and place of delivery, and the interest for the delay. Though the promissec may have suffered a great disappointment and loss, by the failure to fulfil the contract; yet these remote consequences cannot, in such cases, betaken into consideration by courts, in estimating the damages. It is always supposed, that the party could , have supplied himself with the article at that price; and iff he intends to provide against the inconvenience arising from : such a disappointment, he must make a contract adapted to such objects. In the present case, if the plaintiffs had paid to the defendants the full sum for the two thousand barrels of flour contracted for, then they would have been entitledrto re - cover the value of it at New-Orleans} w here it was to have been delivered. If the price had risen between the time of purchase and delivery, they would have made a profitable speculation; otherwise, if it had fallen. If they had paid nothing, if the flour had advanced in price, they would have been entitled to recover the amount of such advance. If the price had fallen, they would have been entitled to recover nominal damages for the breach of the contract; though they might
In this case, the plaintiffs advanced apart of the purchase money ; that is, the sum of five thousand dollars ; and no parallel case has been adduced to shew what ought to be the rule of damages for not delivering the flour. I think the one adopted by the court at the circuit, to be just and reasonable. The defendant has violated his contract; and it is not for him, to say, that if he had fulfilled it, the plaintiffs would have sustained a great loss, and that this ought to be deducted from the money advanced. It is not for him to say, that the plaintiffs shall only recover the reduced value of a part of the flour which was to have been delivered, in proportion to the advanced payment. The contract was for the delivery of an entire quantity of flour ; and no rule can be found for an apportionment in such manner. The plaintiffs have been disappointed in their arrangements; the defendant has neglected his du ty ; and retains in his hands five thousand dollars of th® money of the plaintiffs, without consideration. Nothing cat? be more just than that he should refund it; and I am satisfied, that a better rule cannot be adopted in similar cases.
Concurrence Opinion
concurred, substantially, in this opinion. He remarked, that the plaintiffs, by paying the 5,000 dollars, have performed all that the contract required them to do, before the receiving of the flour. As the flour was not delivered, they were not hound, by the contract, to pay any more. The defendant, on the other hand, has wholly failed of performance, at the time stipulated. He is liable for the breach ; and it will be conceded, that if the plaintiffs had done nothing, they would be entitled to judgment, with nominal damages. Shall they not now recover what they have advanced upon the contract, previous to the breach ? This sum is the actual loss, which they have sustained, by the breach. Complete justice has been done; and no new trial ought to be granted.
This is an action on an express contract, to recover damages for its non-performance. On the 20th day of February 1812, the defendant agreed to deliver to Norton ⅜* Bush, at New-Orleans, two thousand barrels of superfine flour, on or before the 1st day oí May then next. On their part, they contracted to pay 7 dollars per barrel. Of this sum 5,000 dollars were advanced, and the residue was payable at different periods, posterior to the time prefixed for the delivery of the flour. It was not delivered, and the jury have given their verdict for damages in the sum of 6,771 dollars. At the time when the flour should have been delivered, the price of that article, at New-Orleans, was 5 dollars, 50 cents, per barrel, and no mope. The court directed the jury, that “ if they found the issues joined in favour of the plaintiffs, they should find for them to recover of the defendant 5,000 dollars, being the amount of the sum advanced by the plaintiffs to the defendant, and the interest thereof from the time the same was so advanced.” For a supposed misdirection, the defendant now applies for a new trial.
Had the contract been rescinded, in an action for money had and received to recover the sum advanced, the charge to the jury would have been precisely correct. The agreement, however, was open ; the action is founded upon it, and damages áre demanded for the breach of it. So long as the agreement is open, it must be stated specially. Weston v. Downs, Doug. 23. Towers v. Barret, 1 Term Rep. 133. 1 Chitty, 341. and the consideration paid cannot be recovered. The case of Dutch v. Warren, 1 Stra. 406. cited in 2 Burr. 1011. does not contravene, but supports, the latter branch of the above proposition. Although an action for money had and received was sustained, (in my opinion, illegally,) while the agreement remained in full force $ yet the rule of damages, deliberately settled, was, hot the money advanced, but the damages in not transferring the stock, at the time prefixed. The sum paid by the plaintiff was 262L 10s. The stocks, however, having fallen before it was to have been transferred, the verdict, being the price of stock at the infraction of the contract, was for 1751. only.
The jury should have been directed to give the plaintiffs the damages sustained by the breach of the agreement, on the day when it should have been performed. In other words, the plaintiffs were entitled to the price of the flour estimated
He who controverts the principle advanced in the cases cited, must supply a better. If he would sustain the charge to the jury in this case, he must contend, that for breach of contract the sum to be recovered is, not the damages sustained by the non-performance, but the consideration Which the plaintiff may have advanced. A rule so unwarranted as this, so opposed to familiar practice, and numerous decisions, so arbitrary, bearing not at all on the contract of the parties, and mistaking the very ground of the complaint, cannot be supported.
It is contended, that the plaintiffs have not recovered ft greater sum than is due to them j and that justice does not require a new trial. To this proposition I cannot accede. If the benefit derivable to the plaintiffs from a compliance with the agreement, can be ascertained, we shall possess an infallible criterion of the damages sustained, Now' the facts stated, furnish unquestionable data, and reduce the enquiiy to a mere question of calculation. The damages sustained, were, the price of the flour when the contract was first broken | that is, the. sunt of 11,000 dollars. If the contract is to
That the plaintiffs have sustained a considerable loss on the supposed legal result, is unquestionably manifest. A fallacy has existed in not ascribing it to the right cause. It did not arise from the non-performance of the defendant’s agreement. Before the period had arisen when the flour was to have been delivered, the loss had accrued by the fall of it in the market. It is equally obvious, that the defendant had derived a correspondent benefit. The verdict of the jury, in opposition to the contract of the parties, reverses their condition. It rescues the plaintiffs from their loss, and deprives the defendant of his gain. In effect, it arbitrarily subjects the defendant to a warranty, that flour shall not sink in price, and renders him the victim of the plaintiffs’ unfortunate speculation.
It has been contended, that in as much as the defendant did not fulfil his contract, he ought not to derive a profit from it. To this I reply, that the obligations of the parties depend exclusively upon their own voluntary agreement. There was a hazard accompanying the contract. If flour rose in the market, the defendant would become, proportionally, a loser; and if it fell, he would be a gainer. The event on which the result was suspended, was favoura-ble to him ; and of this he cannot be deprived, unless it is the duty of courts to make contracts, not to enforce them.
I am dear in my opinion, that a new trial ought to be granted.
The rule of damages prescribed by the court on llic circuit, seems to have done substantial justice between the
But it is said, the rule of damages in assumpsit is not applicable to this case, because here is an express contract. But in Weaver v. Bentley, 1 Caines, 47. money advanced under a sealed contract, was recovered in assumpsit ; and the court said, “ We are of opinion he (the plaintiff) had his election, either to proceed on the covenant, and recover damages for the breach, or to disaffirm the contract, and resort to his assumpsit to recover back what he had paid.” And Livingston, J. who dissented merely with respect to the form of action, said, that covenant will lie on the instrument to recover back all that has been paid.
But what can the defendant gain by a new trial ? Docs he wish to be subjected to the value of the flour, when it should have been delivered, or at the time of the trial, at the hazard of recovering the sums stipulated, without any pretence of fulfilling the contract on his part ? Or, does he expect the court will aid him in his iniquity, by giving him 3,000 dollars of the money advanced for his breach of faith ? Though the flour might have been purchased at dS'exv-Orleans, at less than the stipulated price, non constat that it would have been an unprofitable cargo in some other market. And after the plaintiffs had advanced their money, and been at the hazard and expense of a voyage to Mew-Orleans to ship it home, or to some other market, is it to be endured that the defendant should pocket their money, and bid them defiance ? « Flour, gentlemen,” says this honest defendant, “ is plenty and cheap at Mew-Orleans. You may buy it, if you can find money and credit, there, and get your money back, in Connecticut, when you can.” I take it to be well settled, that « a new-trial ought to be granted to attain real justice, but not to gratify litigious passions upon every point of summum jus”— Farewell v. Chaffey & al. 1 Burr. 54.: That “ an application for a new trial is to the discretion of the court, who ought to exercise that discretion in such manner as will best answer the ends of justice;” and where “ complete and substantial justice has been done,” tiie court will not “ send the cause down to be re-tried on a technical objection in point of law”—Edmonson v. Machell, 2 Term Rep. 4.: That 4t though the ground of the verdict should be wrong, yet if it clearly appeared to the court now, that, upon the whole, no
New trial not to be granted.