3 Barb. 424 | N.Y. Sup. Ct. | 1848
I think the evidence in this case' sufficiently establishes the following facts: 1. That early in the summer of 1846, the defendants, being engaged in the business of manufacturing steam engines, &c. agreed, for a stipulated price, to make and put up for the plaintiff an engine of ten horse pow
Qn the part of the defendants, it -is contended that this is a case o,f simple warranty, and that there being no provision in the contract for a return of the articles, the title to the machinery became vested in the plaintiff when it was delivered, and that the plaintiff could only recover for the difference in value, between the engine and boiler as they were in fact, and as they* ought to have been. This is undoubtedly the true rule in ca-s ses of a simple sale with warranty. But I understand the rule! to be otherwise in the case of an executory contract. There, if there be no stipulation in the contract on the subject, the articles may be returned within a reasonable time after they have been found not to satisfy the contract. This being the rule, I think the plaintiff had a right to call upon the defendants when he did, to take back the engine and boiler, as having, after full trial by the defendants as, well as the plaintiff, proved wholly insufficient to. satisfy the contract; nothing having been done by the plaintiff in the meantime inconsistent with the exercise
Again ; the defendants insist that if liable for consequential damages at all, they are only liable for such expenses as were actually incurred by the plaintiff in attempting to put the machinery in operation, and such actual loss as he had sustained in using the defective machinery; while on the other hand the plaintiff claims that he is entitled to recover as consequential damages the profits he could have made in the manufacture of oil, had the machinery been complete and put up within the time limited by the contract. The important question upon this branch, of the case, is whether the gains which the plaintiff might have realized if the defendants had fully performed their contract, may properly be regarded as a part of the damage occasioned by the breach of the contract.
I agree with the counsel for the plaintiff in the general rule for which he contends, that the party complaining of a breach of an executory contract is entitled to indemnity for the loss which the non-performance of the obligation by the other party has occasioned him, and for the gain of which it has deprived him. But the gain contemplated by this rule is only that which is the direct and immediate fruit of the contract. Such gain may as properly be regarded, in estimating the damages resulting from a failure to perform a contract, as any actual loss the party may sustain. But even the civil law rule, which is more liberal than the common law in the measure of damages for the violation of an executory contract, confines the allowance for the loss of profits to “ the particular thing which is the ob
The view that I have taken of this question seems fully sustained by adjudged cases, both in this country and in England. The case of Blanchard v. Ely, (21 Wend. 342,) bears, in most of its features, a nearer resemblance to this case than any other I have found. There the plaintiff had contracted to build for the defendants a steamboat intended to fly on the Susquehanna river from Oswego to Wilkesbarre, and to have the boat completed and put in operation by a certain day; for which he was to receive a stipulated price. The plaintiff having delivered the boat, brought an action for the price, and by way of recoupment of damages the defendants proved that some of the machinery of the boat was defective, in consequence of which they had incurred expenses in making repairs and improvements: that the boat had also been subjected to delays and loss of profits which amounted to $100 each trip. The circuit judge allowed the jury to deduct the amount expended by the defendants in remedying the defects in the machinery, and in towing the boat to a proper place to have the repairs made, but
In Driggs v. Dwight, (17 Wend. 71,) it was held that a party who had entered into a contract with for a loan of a tavern stand, and who had, in pursuanc^MH^h agreement broken up his former residence and rémo ve dimthe placé where he was to occupy the tavern stand, might in an action to recover damages for a breach of the contract in not giving him a lease of tfié tavern, recover the expenses he had thus incurred. And the court also say that “ the measure of damages certainly is not confined to the difference of rent, but that the jury might look to the actual value of the bargain the •plaintiff had made? The principle of this case I think would justify an allowance to the plaintiff of any expenses he has actually incurred in bis business as a consequence of the failure of the defendants to perform their contract. The case of Miller v. The Mariners' Church, (7 Greenl. 51,) is to the same effect. The plaintiff had contracted to deliver stone for the defendant’s house by a certain time. He failed to deliver by the time specified, but having delivered the stone afterwards, in an action for the price of the stone the defendants were allowed to recoup in damages, the expenses they had necessarily incurred by the delay of their workmen for want of the stone.
The conclusion at which I have arrived after a careful examination of the facts in this case, and the authorities bearing upon the questions involved, and the principles governing the rule of damages in similar cases, is that the plaintiff is entitled to recover, in addition to the sum paid by him on account of the machinery, which now amounts with interest to about the sum of $700, the further''■'sum of $700 for the expenses incurred and the damages sustaided by him in consequence of the failure of the defendants to finish the machinery according