Dart v. McAdam, 27 Barb. 187

Dart v. McAdam

27 Barb. 187 | N.Y. Sup. Ct. | 1858

By the Court, Marvin, J.

The counsel of McAdam argue that the plaintiff cannot recover any thing, he having failed to perform the agreement on his part; and they cite those *190authorities relating to special contracts for the sale and, delivery of a specified quantity of any article, or for labor for a certain period, in which the vendor or the laborer must fully perform before he can recover the stipulated price. They also argue that if the plaintiff can recover, the defendant McAdam was entitled to damages, more than nominal, for the breach of the agreement by Barnes.

I think the counsel are wrong upon both these points, and that the ruling of the court, as to damages, was entirely correct. The jury have found that the bond and mortgage were executed upon the express agreement that for them Barnes should pay and advance to McAdam the $3000. The first advance or payment was $100, nearly a month after the execution of the bond and mortgage. At this time I have no doubt that McAdam had the right to insist upon the delivery to him of the whole $3000, and upon Barnes’ failing to pay him the whole amount, he could have insisted that the bond and mortgage should be satisfied and canceled. But having accepted a portion of the $3000, the bond and mortgage be?came operative, and a security for the repayment of the amount advanced; and so as to all the sums paid from .time to time by Barnes to McAdam. That it was agreed, at the time each sum was advanced, that Barnes should afterwards advance on the bond and mortgage, to McAdam, sufficient to make up the $3000, does not change the question. There was no special agreement that the bond and mortgage should not be a valid security until the whole sum was advanced. The cases cited by the learned counsel have no application to this case.

Barnes broke his agreement. What was the measure of damages P The contract was for money—a loan of money. If Barnes had performed it, McAdam would have been at once chargeable with interest. The law has fixed the value of money, and the equivalent for its use.. Hot so as to any thing else. A, agrees to pay B. a certain sum, on a certain day, and he fails to pay. B. can only recover the money *191specified in the contract, with the lawful interest thereon to the time of payment, though he may have heen ruined by A/s failure to pay at the day. The law cannot, in such a case, speculate as to the amount of damages. It has established a fixed rule for the value of the use of money. Money is the measure of value of all other things. And it is important that the law should establish a fixed value for its use, and the damages for withholding it when due. In the pres-sent case Barnes agreed to advance or loan to McAdam a certain sum of money, for the use of which McAdam was to pay the interest fixed by law. If he received the money he was to pay,.for its use, all its use was worth. How then, as a question of law, can it be said that he has sustained damage, in not receiving the money ? Barnes failing to furnish him the money, he is relieved from paying for its use. These principles also apply to the costs and expenses of his journeys to Buffalo for the money. If he had received the money when he called for it, he would have been compelled to pay interest from that time; and neither he nor any one else would then have supposed that he would be entitled to have his costs and expenses refunded. I can discover no basis for damages. The issue, as settled, was what amount of damages did McAdam suffer by reason of Barnes’ failing to advance on the bond and mortgage the balance of the $3000 ? It was not what damage did he sustain by reason of his going to Buffalo, at the request of Barnes and on his promise to advance the rest of the money ?

In my opinion, the decision of the learned justice, touching the damages for the breach of the agreement by Barnes, •was not erroneous.

I think, also, that the proper disposition of the case was made by the court. After the jury had given their verdict upon the issues settled, the court proceeded to ascertain the amount due upon the mortgage. The usual affidavits, relating to parties defendants who had not appeared, were read. The counsel supposed that this could not be done at the cir*192cuit, hut that it was business for a special term, upon a notice founded on the verdict, &c. The judge was holding a circuit and special term, and it .is not material in which court the papers show the proceedings to have been had. There was a court there that had power to do all that was done; and if the record is wrong in stating that the circuit.court made the order, and directed judgment, &c. it can he amended. It would not he cause for reversal. And so, if the practice was irregular, the remedy would he hy motion. But, in my opinion, it is quite immaterial whether the proceedings subsequent to the verdict were in the circuit or special term. A judgment, in the first instance, is to he entered upon the direction of a single judge, &c. (Code, § 278. And see §§ 254, 255, 260, 261.)

[Genesee General Term, May 17, 1858.

Grover, Marvin and Davis, Justices.]

The judgment should he affirmed.