47 N.Y.S. 312 | N.Y. App. Div. | 1897
The averments of the complaint herein set forth a cause of action for- damages for the breach of a contract to loan the plaintiff a certain sum of money. The answer substantially admits the making of the contract, but sets up . special matter in excuse and justification of non-performance of it. It appeared in evidence on. the trial that the plaintiff was the owner and had in his possession certain fixtures and chattels, constituting the equipment of a liquor saloon in Madison street in the city of New York. On the 1st day of May, 1894, that personal property, and also' a liquor tax certificate, were subject to a chattel mortgage which the plaintiff had given to the Consumers’ Brewing Company of the .city of New York,, and at that time that chattel mortgage was a lien upon, the whole property and was payable on demand. On that day one Prince, who was the representative of the defendant, agreed with the plaintiff to loan him the sum of $700 and to take from him his promissory note, payable on demand, for that amount, to be secured by a chattel mortgage upon the same property covered by the chattel mortgage to the Consumers’ Brewing Company. At about the same time, Prince, on behalf of the defendant, made an arrangement with the plaintiff by which the latter agreed to sell in .his beer saloon only beer manufactured- by the defendant, in consideration of which -and as collateral to the agreement for the loan, the representative of the defendant stipulated that he would net call for the payment of the
The real question involved here is as to the liability of the defendant for the breach of the contract. The contention is made that the plaintiff is not entitled to recover substantial damages because the terms of the contract contemplated a loan on demand, and it is claimed that there is nothing in the evidence to show that any substantial damages resulted from the breach of the contract. We had occasion to consider the general question of the liability of a person for the breach of a contract to loan money payable on demand in the case of Goldsmith v. Holland Trust Co. (5 App. Div. 104), and it was there pointed out that each case brought • upon such a contract must stand upon its own peculiar facts and that no general rule can be laid down as to what constitutes substantial damage for the breach of such a contract. It is unnecessary to reiterate what was there said, nor to refer again to the case of The Bradford, Eldred & Cuba R. R. Co. v. N. Y. & Lake Erie R. R. Co. (123 N. Y. 316). The principle upon which liability accrues for the breach of such a contract was correctly stated in this case by the learned judge in his charge to the jury, namely, that generally there-can he no recovery of damages for the failure to loan money when, according, to the contract of loan, it is to be payable on demand, and that the case must be an exceptional one which authorizes a recovery for the breach of such a contract. The facts in this case show that it is an exceptional one and it is now disposed of, as was the Goldsmith case, upon its exceptional state of facts.
The loss to the plaintiff by the foreclosure was the direct result, of the failure of the defendant to apply the money according to its promise to satisfy the Consumers’ Company lien. Had the money been used as the defendant agreed to use it, the property would have been saved to the plaintiff; and the excuse for not advancing-it being by the verdict of the jury an insufficient one, the responsibility for the loss to the plaintiff rests upon the defendant.
The only remaining question is as to the measure of damages.. There was nothing whatever in the evidence to justify any recovery for the loss of profits. But the real measure of damages in this case is the difference between the value of the property and the amount of the liens upon it. This property cost the plaintiff §900. The tax certificate had a surrender value; it had ten months to run the surrender value was $180 ; that is to say, the value of the unexpired term of the license was that sum. Only a few weeks before the foreclosure, the plaintiff bought the saloon equipment for the sum of $900, and there is evidence from which it' may be inferred that that was about its fair value. The defendant advanced $100 to the plaintiff, and the property was subject to a lien of $600, and,, therefore, the plaintiff’s interest in it was about the sum of $200. The value of the license, $180, should he added to this sum. The verdict of the jury "was for $425, of which sum $50 was for expenses, of the foreclosure proceeding. Those expenses were allowed by the •jury as damages sustained by the plaintiff, and that was properly done, because, under the terms of the chattel mortgage to- the Consumers’ Brewing Company, it was stipulated that, from the proceeds, of sale under that mortgage, if one were had, should be deducted the charges incurred in the foreclosure. The verdict of the jury was for five dollars less than the plaintiff was entitled to, and the-amount fixed by them not being in excess "of that to which the plaintiff was entitled, no occasion exists for interfering with the verdict.
The judgment should be affirmed, with costs.
Rumsey, O’Brien and Parker, JJ., concurred; Van Brunt, P. J., dissented.
Judgment affirmed, with costs.