36 N.Y.S. 838 | N.Y. Sup. Ct. | 1895
The action was brought to recover $950 and interest upon an accepted draft which defendant gave for Hecla powder bought from plaintiff, to be delivered in Santiago de Cuba. Defendant denied that the powder had been delivered, and set up a counterclaim based upon the plaintiff’s attempt and failure to make the delivery; alleging that it neglected to procure the proper
The more serious question is as to the liability of the plaintiff to reimburse the defendant for the fine which was imposed by and paid to the Spanish authorities. At first blush" it might seem difficult to predicate a liability on the plaintiff’s part to reimburse the defendant for what, so far as appears, might have been the unlawful and unwarranted act of the Spanish government, in seizing the powder and imposing the fine. The law only recognizes damages which are natural and probable, and not those which are extraordinary and unlikely to be foreseen. Remote, consequential losses cannot be recovered. Putnam v. Railroad Co., 55 N. Y. 108, 119; Sedg. Dam. (8th Ed.) §§ 122, 124. And it is urged by appellant that the payment of such a fine would not be the direct or natural consequence of any act by it, and the possibility of a fine’s being imposed upon the defendant or its agents was exceedingly remote. Without quarreling with this argument, we think that when consideration is taken of the contract between the parties, and what it included, and the duty that devolved on each, we can reach a conclusion as to who should bear a loss which in the first instance was suffered by the defendant. It was within the knowledge of both the contracting parties that the introduction of powder into Cuba was a matter of difficulty, requiring the taking of certain precautions, including the obtaining of a consular permit, and, with knowledge of such difficulties and of the risk assumed, the plaintiff, for a consideration, agreed, not only to sell the powder, but to assume the risk of delivering it to defendant’s agents in Santiago de Cuba. The jury having found that they did not perform their contract, and did not deliver the powder to the defendant’s agents,—from which the inference naturally flows that it was seized while still in the possession of the plaintiff,— we are brought "to a point where, upon well-settled principles of law, we must hold that the loss resulting from the breach of such contract by the plaintiff should be suffered by it. If, as claimed by defendant, the testimony shows that the usual precautions which the plaintiff agreed to take were not taken,—such as giving the defendant’s agents previous notice of the shipment and the name of the vessel, and forwarding to them the necessary docu
“The good sense of the rule seems to be this: That In a case where, if an ■event happens, it must inevitably cause loss and damage to one or the other of the contracting parties, the party who has contracted that such an event shall not happen, although he cannot specifically perform that contract, because the event may happen through the act of God, or inevitable necessity, yet he shall stand to that risk, and make good all the loss which shall occur in consequence of the happening of the event contemplated. The party thus contracting takes the consequences. Parties who enter into a contract in reference to the carrying out of any branch of business are presumed to know and understand how that business is usually carried on, how it must necessarily be conducted, and to have reference to such known circumstances in ■their contracts.”
Upon the proposition that such damages as defendant here suffered from the breach of the contract to deliver, and which flowed naturally from such breach, and being certain in their nature, are recoverable, authority is to be found in the cases of Griffin v. Colver, 16 N. Y. 489; Dodds v. Hakes, 114 N. Y. 260, 21 N. E. 398; Allen v. McConihe, 124 N. Y. 342, 26 N. E. 812. In addition to these, we have the leading case of Hadley v. Baxendale, 9 Exch. 341, wherein Alderson, B., thus states the rule:
“Now, we think the proper rule in such a case as the present is this: Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered ■either arising naturally—i. e. according to the usual course of things—from such breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendants, and thus known to both parties, the damage resulting from the breach of such contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under the special circumstances so known and communicated; but, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could*842 only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances from such a breach of contract. For. had the-special circumstances been known, the parties might have specially provided for the breach of contract by special terms as to the damages in that ease,. and of this advantage it would be very unjust to deprive them.”
Our conclusion therefore is that as the plaintiff agreed to deliver, and in the attempt, which was abortive, but which plaintiff agreed would be successtul, the defendant was placed in a position where it suffered loss flowing naturally from a cause covered by the contract, such loss should be borne by the one guilty of the breach.
In addition to these questions, we have the subsidiary ones, based upon certain exceptions taken to rulings upon evidence, and one exception to the charge of the learned trial judge. An examination of such has not shown that any error was committed sufficient to disturb the verdict which, upon conflicting evidence,, and under what might be designated as a fair preponderance of evidence, was reached by the jury.
We think that the judgment and order were right, and should be affirmed, with costs. All concur.