19 N.Y. St. Rep. 683 | City of New York Municipal Court | 1888
Concurrence Opinion
The action, as originally brought, was tore-cover $564 for that number of busts made for the defendants, and $50 for a model, aggregating $614; and by way of further damages the plaintiff alleges “that in consequence of the defendants’ wrongful refusal to accept the said 564 busts, the plaintiff was obliged to keep the same in his warehouse, where the same incumber his premises and occupy space which plaintiff requires for other goods; and plaintiff claims as special damage, or by way of storage, $5.64 per day from February 27, 1886, to the date of trial.” The action was severed as to the first two causes of action, judgment being awarded in favor of the plaintiff in respect thereto, and the action was allowed to be continued, and went to trial as to the storage only, and the question, which is a novel one, is narrowed down to the right of a vendor to recover storage.
When a vendee or person refuses to accept the property bargained for, the vendor or manufacturer has the choice of one of three remedies: (1) To treat the property as belonging to the vendee, and to sue for the contract price, (Hunter v. Wetsell, 84 N. Y. 549;) or (2) to sell the "property on notice, at the market price, and sue the vendee for the difference between the sum realized and the contract price, (Crooks v. Moore, 1 Sandf. 297; Pollen v. Le Roy, 30 N. Y. 549;) or (3) regard the contract as forfeited, and retain the property as his own, and sue the vendee for damages for the non-performance of t-he contract, in which case the damages are limited to the difference between the contract price and the market value, (Mason v. Decker, 72 N. Y. 595, 599;
The action is misconceived, and n.o recovery should have been allowed under the pleadings or proofs. The trial judge ought to have dismissed the-complaint when the motion was made therefor by the defendants’ counsel, and he erred in not doing so. It is not to be inferred from what we have said, that a vendor must, where the vendee fails to accept, sell the goods, for, while he may, he .is not bound to sell the property, (Hunter v. Westsell, 84 N. Y 549,) except in cases where storage charges are contemplated. The theory of the damages adopted was erroneous for two reasons: First. The party in default is only liable for such damages as naturally arise from the breach,, or which may reasonably be supposed to have been within the contemplation, of the parties when the contract was made as the probable result of its breach, but not for accidental, remote, or consequential causes. The contract itself' furnishes the data from which the damages are estimated; and those naturally arising'from the breach of the contract made by the parties litigant hereto-were (1) the contract price, (2) the difference between the sum realized on a resale and the contract price,' (8) the difference between the contract price- and the market value, depending of course upon the nature of the remedy pursued. The only other damages supposed to have been within the contemplation of the parties was the interest upon the sum withheld, for this is the-uniform rule of damages allowed in the absence of any express condition when payment is withheld after it has become the duty of the debtor to discharge-the debt. Sedg. Dam. (6th Ed.) 473, note. These damages are supposed to* fully compensate every, loss a vendor or manufacturer sustains by reason of the failure of the purchaser to complete his contract, and they effectually exclude the idea of such consequential damages as storage. It would be farfetched to hold that a party ordering goods contemplated storage expenses, or' that such charges naturally follow a purchase. The object of a purchase is. to obtain an article to supply a use either of the purchaser or of some customer of his. The purpose is not to give a.warehouseman employment, or enable him to make a bill. It is clear, therefore, that the minds of the parties never met upon the subject of storage. Second. But assuming for the moment that such far reaching damages were recoverable, they were not sufficiently restricted in the period of their duration. The plaintiff brought suit-.seven days after the defendants’ default in not accepting the goods according' .to the notice, and, if entitled to recover at all, the recovery shtfuld have been, limited to the lawful warehouse charges due when the suit was commenced.. This is but a trifling sum. The damages were not of a continuing character,, as in Everson v. Powers, 89 N. Y. 527, but were of a temporary nature, to. cease when a resale of the property was made by the plaintiff on the defendants’ account; and that should have been hagl within a reasonable time. But the plaintiff never attempted to resell, in fact, disabled himself from reselling-by suing for the contract price, (Westfall v. Peacock, 63 Barb. 209,) so that-the legal right to store the goods (even for a reasonable or any time) was not. established; and thus we are driven back to the root of the contention, which' furnishes no foundation for any damages whatever. The defendant neither expressly nor impliedly assented to the storage of the goods, and the plaintiff kept them on his premises by his own act and neglect, for which the law allows no recompense; volenti non fit injuria. The evidence as to value is equally as objectionable, for, even if entitled to any recovery, the plaintiff was limited to the ordinary warehouse charges. Hazeltine v. Weld, 73 N. Y. 156. The trial judge permitted the plaintiff to testify to the value of the-space on his premises (not a warehouse) occupied by the goods. He corrected himself, by telling the jury that “the plaintiff was not entitled to recover anything more than that which a warehouseman would recover for like services, ” and then went back to the first error, by charging the jury that they might accept either the evidence of the defendant’s witnesses (warehouse experts),
Lead Opinion
The complaint contains a single cause of action, which is for damages, direct and consequential, claimed for the breach of a written contract. Three elements of damage are alleged: First, refusal to accept or permit a delivery of 564 busts; second, refusal to pay one-half the cost of a model; and, third, as an item of special damage, $5.64 per day from February 27, 1886, to the date of the trial of the action, as the value of the use of the space in plaintiff’s factory, occupied by the 564 busts, in consequence of defendants’ wrongful refusal to accept the same. Prior to the trial, an order for judgment on the pleadings had been made, covering the first two items of damages, the amount thereof had been paid, and the action continued as to the third item. I am in favor of a reversal of the judgment appealed from, on the broad ground that the action is one for damages for breach of contract, and not for the agreed price of goods to be manufactured; and that the order for judgment is not an adjudication inconsistent with this construction, nor is defendant estopped or otherwise precluded from resisting, for this reason, the claim for storage. The complaint distinctly alleges that defendants refused to accept or permit a delivery, and claims damages therefor; therefore it should be held that there was no delivery, either in fact or in law, without which the title could not pass. I think also that the learned court below erred in allowing evidence as to the cost or value of cartage, and the value of storage room in plaintiff’s factory, and that the latter error was not cured by the charge. The judgment should be reversed, and a new trial granted, costs to abide event.