7 Cow. 681 | N.Y. Sup. Ct. | 1827
Two questions arise upon the exceptions taken to the decisions and charge of the court:
1. As to the sufficiency of the tender proved; and 2. If the tender was not sufficient, as to the rule of damages.
The court decided that the plaintiff was entitled to recover the highest price which salt sold for at Salina, per barrel, between the time when the note became due, and the day of trial. The plaintiffs in error contend that- the damages are to be limited to the value of the salt at the time when the note fell due, with interest.
As to the tender. The court charged the -jury, that in order to make out a tender or payment of the salt, the defendants below were bound to prove that the barrels were of the dimensions and description described in the 3d section --of the act relating to the salt springs, (1 R. L. 249,) and that they contained five bushels each. That section provides, that all salt manufactured at those springs, which shall be put up in casks, shall be- packed in good casks, water tight, well hooped with twelve hoops, three on each head, and three on each bilge; which casks shall be thirty inches long, and the diameter of each head nineteen inches. There was no direct evidence as to the length of the barrels. In other respects, the weight of evidence, I think, showed them to be conformable to the statute; and the fair inference from all the testimony is, that they were of the proper length. They were shown to have had the requisite number of hoops, and the proper sized heads; to have been common sized barrels; and to have been good and tight. Some of the defendant’s witnesses, it is true, said they were not tight and in good boatable order; that the heads were warped. But they saw them several weeks after they were turned out to the plaintiffs below, and after they had been exposed to the weather; and the proba
The question as to the rule of damages, however, is the most important.
The principle adopted by the court below is in conformity to the decision of this court in West v. Wentworth and Beach, (3 Cowen, 82.) But, as that case was slightly argued, and the question is one of very considerable interest, we permitted it again to be discussed; and are now prepared'to reconsider, and, so far as depends upon the judgment of this court, definitely settle it.
In the ordinary case of a contract for the sale or delivery of a personal chattel, where the price is not paid at the time of making the contract, but is to be paid upon the delivery of the article, the criterion by which to measure damages for the breach of the contract, is unquestionably
Most of the cases in which this principle has been adopted, have grown out of contracts for the delivery and replacing of stock ; and it is believed there is no case to be found in England in which the damages upon such a contract, have been confined to the value of the stock at the time when it should have been replaced, where the action *was brought upon the contract itself, and the question was distinctly presented and passed upon by the court, it appearing affirmatively that the stock was subsequently of greater value.
The case of Dutch v. Warren, cited by Lord Mansfield, in delivering the opinion of the court, in Moses v. McFarland, (2 Burr. 1010,) and also reported in 1 Strange, 406, was supposed by the counsel for the plaintiffs in error, to contradict this principle. We think, upon a careful examination of that case, that it justifies no such conclusion. It was cited by Lord Mansfield, to illustrate the principles which regulate the action for money had and received; and, principally, to show that where money has been paid under a special agreement, which the opposite party refuses to perform, it may be recovered back in that form of action, instead of resorting to an action on the special agreement. The case was substantially this: On the 18th of August, 1720, on payment of £262 10s., by the plaintiff to the defendant, he agreed to transfer to the plaintiff 5 shares in the Welch copper mines, at the opening of the books; and
That case, therefore, most manifestly decides nothing which has a bearing upon the question of damages, where the action is brought upon the contract itself, and not to recover back the money paid, and where it affirmatively appears that the price of the stock has varied between the time when it ought to have been transferred and the time of trial. The subsequent cases, therefore, in which it has repeatedly been held, that, in such a case, the plaintiff is not confined, in estimating his damages, to the value of the stock on the day when it should have been returned, are not in collision with the case of Dutch v. Warren, nor with the opinion of lord Mansfield, as it is to be inferred from his comments upon it.
Shepherd v. Johnson, (2 East, 211, A. D. 1802,) is the first in a series of cases upon this subject. That was an *action upon a bond conditioned that the defendant should replace, by a given day, a quantity of stock which the testator of the plaintiff had lent him. Between the day when the stock should have been replaced, and the day of trial, it had risen in value nearly one hundred pounds, and the value on the day of trial was adopted as the true measure of damages. That was the only question presented by the case. Dutch v. Warren, was cited and relied upon by the defendant’s counsel; but it must have been considered as inapplicable, for no notice is taken of it in the opinions delivered by the judges. It is mentioned in a note to this case, that the same measure of damages was adopted by lord Eldon in Payne v. Burk, decided in 1799.
In McArthur v. Seaforth, (2 Taunt. 257, A. D. 1810,) the plaintiff, in January, 1801, bad loaned to the defendant £3,200 of five per cent, loyalty loan stock; and taken a bond, conditioned for the re-transfer, in one year, of the same amount of 5 per cent, bank annuities. The action appears not to have been brought until 1809 or 1810; and the plaintiff contended that he was entitled to the best of three prices; either, 1. The price at the day agreed on for re
*In Gainsford v. Carroll, (2 Barn. & Cres. 624,) the cases which I have mentioned, and the principle on which they proceeded, were expressly recognized. That was an action of assumpsit for not delivering a quantity of bacon upon a given day; and the plaintiff claimed, as his measure of damages, the difference between the contract price and the price on the day when the writ of inquiry was executed, on the authority of Shepherd v. Johnson and McArthur v. Lord Seaforth ; but it was answered by the court, that those cases did not apply; that in the case of a loan of stock, the borrower holds in his hands the money of the lender, and thereby prevents him from using it for the purpose of replacing the stock; but in the case of a purchaser of goods, the vendee is in possession of his money, and he has it in his power, as soon as the vendor has failed in the performance of his contract, to purchase other goods of the like quality and description; and if he has sustained any loss by neglecting to do so, it is his own fault. This distinction was also recognized in Leigh v. Patterson, (8 Taunt. 540,) and its force and propriety are too obvious to require illustration.
The language of the court in Gainsford v. Carroll, admits by necessary implication, that if the bacon had been paid
This distinction is expressly recognized and sanctioned by chief justice Marshall, in Shepherd v. Hampton, (3 Wheaton, 200.) That was an action brought for the breach of a contract for the sale and delivery of 100,000 lbs. of cotton, to be delivered on or before the 15th day of February, 1815, for which the plaintiff was to pay at the rate of 10 cents per pound. The defendant delivered about 50,000 lbs. by the time stipulated; and then refused to fulfil his contract, or deliver any more. Cotton rose between the 15th of February, 1815, and the commencement *of the suit, from 12 to 30 cents; and the plaintiff contended that he was entitled by way of damages to the difference between the price stipulated, and the highest market price up to the rendition of the judgment. The court, however, held the rule of damages to be the market price of cotton on. the day the contract ought to have been executed. The chief justice says, “ The unanimous opinion of the court is, that the price of the article at tne time it was to be delivered, is the measure of damages. For myself only," he continues, “I can say, that I should not think the rule would apply to a case where advances of money had been made by the purchaser under the contract. But I am .not aware what would be the opinion of the court in such a case.”
The case of Gray v. The President, &c., of the Portland Bank, (3 Mass. Rep. 364,) cited and relied upon by the counsel tor the plaintiffs in error, instead of impeaching, appears to corroborate the same principle. That was an action on the case, brought against the bank, for refusing to permit the plaintiff to subscribe a certain number of shares in the stock of the bank, which he contended, and which the court decided he was entitled to. He owned 70 shares as one of the original subscribers to the stock of the
*That case, therefore, was perfectly consistent with Shepherd v. Johnson. The distinction escaped judge Sedgwick, although it was clearly perceived and recognized by judge Sewall.
Kent, J., in delivering the opinion of the court in Cortelyou v. Lansing, (2 Caines’ Cas. Err. 216,) cites, apparently with approbation, the case of Shepherd v. Johnson ; and he cites it in confirmation or illustration of the principle which he was then maintaining, that in many cases, the measure of damages is not the value of the chattel or article, at the time when the cause of action accrued. In that case, the depreciation note which had been pawned to Cortelyou, was sold by him in 1788. It was not demanded by the representatives of the pawner until 1799, eleven years afterwards; and there was no evidence of a readiness or capacity on the part of the plaintiff, when he made the demand, to redeem the pledge. The cause of action, therefore, did not arise from the demand; but accrued substantially at the time of the sale; by which act the defendant incapacitated- himself to restore the pledge. But the plaintiff in that case, recovered according to the value of the note in 1799, when it was demanded; because, as the court express it, he manifested his will to have it then restored. The rule in trover, that, where the chattel is not of a fixed and determinate value, the damages are not in
The adopting of a period, then subsequent to that when the cause of action accrued, as the time when damages are to be measured, where the circumstances of the case show that the substantial purposes of justice will be best promoted by it, is not an anomaly in the law; nor is it peculiar to contracts for the sale or delivery of stock.
The case of Sanders v. Kentish and Hawksley, (8 T. R. 162,) has no bearing on the question of damages. It "*is not even alluded to in the opinion of the court delivered by lord Kenyon. The only question discussed or decided, was, whether the contract on which the action was brought, was within- the statute of 7 Geo. 2, ch. 8, sect. 8, for the preventing of stock-jobbing. It does not appear, from any part of the case, upon what principle the damages were ascertained. It is, however, stated by the counsel for the defendant in Shepherd v. Johnson, (2 East, 211,) that the damages in Sanders v. Kentish were estimated according to the price of the stock when it ought to have been transferred : and he stated the reason; because the stock had fallen in value between that time and the trial. That was also the case in Forrest v. Elwes, (4 Vesey, 492.)
Morley v. Bird, (3 Vesey, 629,) was a bill filed to enforce the payment of a legacy of stock; and it was decreed according to the value of the stock, at the end of a year from the death of the testator, when it ought to have been paid. Whether it was, subsequently, of a greater or less value, does not appear. But as that was the period moved for by the complainant, the presumption is that it was most favorable for him.
The rule of damages for the breach of a covenant for quiet enjoyment, where there has been an eviction, depends upon considerations and principles peculiar to that action; and which have no application to the class of cases which We have been considering. (3 Caines, 113; 4 John. 1.)
Whether this rule of 'damages would be applicable to contracts for the sale and delivery of individual articles, purchased for the use and accommodation of the vendee, and not for the purpose of sale, we express no opinion. The case at bar is evidently a contract for the purpose of trade and commerce; and to that class of cases, we wish to be understood, as at present confining our opinion.
The consideration, in this case, is acknowledged to have been received at the time of making the contract. Whether it was in money or in anything else, is not, perhaps, material: but the presumption of law, is, that it was in money.
The salt, in this case, was to have been delivered on the 15th of April, 1821. The plácito, of the record in the common pleas, is of the term of May, 1821; so that the suit must have been immediately commenced; and the rule of damages adopted in the court below was correct.
On the first ground, however, we are inclined to think, the judgment ought to be reversed, and a venire de novo awarded.
Buie accordingly.
In an action to recover damages for the non-performance of a contract, other than for the conveyance of land, the rule of damages is the loss or injury sustained by the part ready and willing to perform, and not the price agreed to be paid on actual performance; the rule of law that a tender is equivalent to performance, applies only to the right of action, and not to the measure of damages. Shannon v. Comstock, 21 Wen. 457.
It seems, however, that if the non-performance was not involuntary, but on the contrary was attributable to fraud or to a desire to benefit the party failing, that such circumstances may be taken into consideration to enhance the damages. Ib.
The vendee of goods received them at a stipulated price, payable in certain indorsed'notes, on condition that within a given period he should deliver the notes, or return the goods: but afterward refusing to do either, the vendor sued him for goods in trover; held, that the measure of damages was the actual value of goods and interest; and that the vendee was not concluded by the agreed value. Stevens v. Low, 2 Hill, 132.
The measure of damages for not performing a contract to deliver specific articles at a specified place, and on a specified day, is the difference between the price agreed and the market value of the articles at the time and place of delivery, consequently evidence of the value at another place or time should not be admitted; because the value at the place stipulated must control. However, if the proper evidence is not clear, then evidence of the value at other places in the vicinity is admissible; but only to ascertain more clearly the value at the place of delivery. Gregory v. M'Dowel, 8 Wen. 435.
How it would be if the chattels were intended for the private use of the vendee. Clark v. Finney, 7 Cow. 681.
If the suit be delayed by attempts to compromise, it seems the damages should be according to the value when the suit is commmenced. Ib.
In cases where the market value of goods is the proper test of damages, the law contemplates a range of the entire market and the average of prices as thus found, running through a reasonable period of time; not any sudden and transient inflation or depression of prices, resulting from causes independent of the operations of lawful commerce. Smith v. Griffith, 3 Hill, 333. See West v. Wentworth, 3 Cow. 82.
The price paid for an article by a party, whose damages depends upon the
A party complaining of the breach of an executory contract, is entitled, as a general rule, to indemnity for loss occasioned by the non-performance of the other, and for such gain as would be the direct and immediate result of the contract, and the indemnity will include expenses incurred in business as a direct consequence of the failure of defendant to perform his contract. Freeman v. Clute, 3 Barb. 424. N. Y. Dig. Yol. 2, p. 647, et seq., tit. Damages.