DeLeon v. McKernan

25 Misc. 182 | N.Y. App. Term. | 1898

Gildersleeve, J.

The action is for damages for a breach of contract. The defendants were copartners in the business of ex-pressmen. On the morning of October 30, 1897, the plaintiff, a commercial traveler, asked defendants if they would get his trunk down to pier No. 47, North river, before 11 o’clock that morning, as the boat upon which plaintiff was to go to Barbadoes sailed promptly at noon, and the steamship company required the baggage to be there by 11 o’clock. The defendants agreed to get the trunk there in time, and plaintiff paid them fifty cents expressage. One of the defendants swears that he gave to the plaintiff a receipt in which the contract of expressage was set forth, limiting the liability of defendants to the sum of $25. The plaintiff, however, swears that he never received any such receipt. The trunk was not delivered at the pier until after 12 o’clock, and after the boat had sailed, with the plaintiff on board. As the trunk contained important articles for use in Barbadoes, which rendered it essential for the plaintiff to take it with him, plaintiff, upon discovering that the trunk was not on board, got off the boat at Sandy Hook and hired a tug to bring him back to New York, where he remained for some sixteen days, waiting for the next boat for Barbadoes. The plaintiff swears, without contradiction, that he had no business in this city during that interval between the sailing of the two boats; that he depended for his living entirely upon his knowledge and efforts in selling goods outside the United States; that he usually spent only seven or eight days here, between his trips of five or six months in the West Indies; that he paid his own expenses in his commercial traveling; and that his expenses in the West Indies were much less than they were here, for the reason that he had a large number of friends there who put him up for nothing. He further swears, without contradiction, that he paid $15 for the tug; $9.84 for a cablegram to Barbadoes, in reference to his other trunks which had gone by the steamer on October 30th; $12 for room rent; $30 for living expenses during his enforced stay here; and $10 for an extra ticket to Barbadoes. In this action he seeks to compel the defendants to reimburse him for these sums'so paid, amounting in the aggregate to $76.84. The court rendered the following decision, viz.: “ Under the proofs, the item of $10 for extra passage ticket is the only direct damage resulting from defendants’ default;” and judgment was, accordingly, given in plaintiff’s favor for $10, and costs, amounting in all to $23.37. From this judgment the plaintiff appeals to this court, on the ground of the insufficiency of the amount awarded. Are the items of $42 for board and room rent, $15 for the tug, and $9.84 for the cablegram, such direct and natural consequences of defendants’ breach of contract as make them chargeable therefor? On his cross-examination, the plaintiff admits that, when he made his contract with the defendants, he simply told them that he would have to get the steamer, without specifying the consequences that would follow in case the defendants failed to get the trunk at the pier in .time for it to be put on the boat.

In the case of Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209-217, Chief Judge Earl lays down the rule of law in the following language, viz.: “ It is frequently difficult in the administration of the law to apply the proper rule of damages, and the decisions upon the subject are not harmonious. The cardinal rule undoubtedly is that the one party shall recover all the damage which has been occasioned by the breach of the contract by the other party. But this rule is modified in its application by two others: The damages must flow directly and naturally from the breach1 of the contract, and they must be certain, both in their nature and in respect of the cause from which they proceed. Under this latter rule speculative, contingent and remote damages which cannot be directly' traced to the breach complained of, are excluded. Under the former rule such damages only are allowed as the parties may fairly be supposed when they made the contract to have contemplated as naturally following its violation.”

In view of the fact that plaintiff gave no intimation to the defendants of the consequences that would follow their failure to perform their contract, we do not think that the items of alleged damages, under consideration, can he reasonably supposed to have been within the contemplation of the contracting parties, at the time of making the contract, as naturally following its violation by the defendants.

There is nothing.in the evidence to show why plaintiff could not have ascertained if his trunk had been delivered before he went on the ship himself, and thus obviated the necessity of hiring the tug to bring him back from Sandy Hook. The testimony shows that it was the usual custom for passengers to reclaim their baggage before it was put on board the boat, although the plaintiff asserts that such procedure was not necessary with this particular steamship company. There is nothing, however, to indicate that defendants were aware of this exception to the rule. Ho reason is given to show that plaintiff could not either have arranged with the officers of the ship with regard to his other trunks, that were already on hoard, or have taken them off with him, and thus avoided the necessity of the cablegram. Hor is there any evidence by which we could arrive, with any sort of certainty, at the difference between plaintiff’s living expenses, had he gone to Barbadoes on October 30th, and those which he incurred by reason of his enforced stay in Hew York.

We are of opinion that the justice fell into no error in declining to award to the plaintiff the items of damage claimed on this appeal.

The judgment, so far" as assailed on this appeal, should be affirmed, with costs of the appeal to the respondents.

Beekman, P. J., and G-ieg-ebioh, J., concur.

Judgment affirmed, with costs of appeal to respondents.