76 N.J.L. 585 | N.J. | 1909
The opinion of the court was delivered by
The first trial of this action resulted in a judgment of nonsuit, which, upon error, was reversed by this court. Holt v. United Security Life Insurance Co., 45 Vroom 795. The new trial thereupon granted resulted in a verdict in favor of the plaintiff for substantial damages, upon which judgment has been entered, and that judgment is now under review for alleged trial errors.
The following is the case presented by the record and bill of exceptions: In the fall of the year 1899 Chapman was in possession of a lot of land in Atlantic City, with a frame boarding-house thereon, under a written agreement of purchase made between him and one Price, the owner. Chapman
In reliance upon the agreement thus made by the defendant
The ease discloses that Chapman had obtained credit from his materialmen and contractors upon the strength of the defendant’s agreement to advance the $32,500 upon completion of the building. When that agreement was repudiated mechanics’ lien suits were brought and judgments obtained therein, including liens upon the building, and in order to prevent a sacrifice of the property by execution sale, he, in January, 1901, effected a private sale of the property to Messrs. Sheppard & Hackney, upon terms that reimbursed him for a considerable part of the expenditures that had been made and liabilities that had been incurred in and about the erection of the new building, not, however, including the value of the frame building removed, the rental value of the property while the construction of the new building was under way, nor certain disbursements to be referred to below.
The numerous assignments of error refer principally to the refusal by the trial judge of motions made for a nonsuit and for the direction of a verdict in favor of the defendant; to the refusal of the defendant’s sixth request to charge, which related to an asserted justification of defendant’s rescission of the agreement, and to the instructions given respecting the measure of damages.
The motions for nonsuit and for direction of a verdict were rested upon two points only.
First. That the action was improperly brought in the name of Holt to the use of Chapman. The argument is based upon
The present is not an action by assignee, but is a suit by the nominal promisee in behalf of the party for whose benefit the promise was made, and from whom the consideration moved. In such cases, when arising upon simple contracts,
Moreover, the objection, if it were valid, relates to the merest matter of form, not at all affecting the fair trial and determination of the real question in controversy; and therefore if it had been deemed tenable it ought simply to have led to an amendment in the trial court, or, failing that, in this court, under the very liberal policy prescribed by our Practice act respecting amendments. Pamph. L. 1903, p. 572, § 126. American Life Insurance Co. v. Day, 10 Vroom 89, 91; Farrier v. Schroeder, 11 Id. 601; Blackford v. Plainfield Gaslight Co., 14 Id. 438, 442; Ware v. Millville Fire Insurance Co., 16 Id. 177, 179; Finegan v. Moore, 17 Id. 602, 604; Jones v. Cook, 25 Id. 513, 517; Monmouth Parle Association v. Warren, 26 Id. 598, 601; Vunk v. Raritan River Railroad Co., 27 Id. 395, 399; Excelsior Electric Co. v. Sweet, 28 Id. 224, 226.
The second and only remaining ground upon which the motions were rested was that by the contract the plaintiff’s right to have the advance of money from the defendant was conditioned upon producing a search showing a marketable title, and that he failed to prove its production. Concerning this it is sufficient to say that the repudiation by the defendant of its obligation to loan the money, in advance of the time for performance, dispensed with the further performance of conditions precedent by the plaintiff. O’Neill v. Supreme
The next ground urged for reversal is that the trial judge ought to have charged the defendant’s sixth request, which was to the effect that if the jury should find that by the terms of the contract the defendant was to loan the money upon completion of the building on or before September 1st, 1900, and that (regardless of defendant’s repudiation) the plaintiff could not have completed it by that time, and that the president of the defendant company so thought when he rescinded, and that such rescission was justified, the verdict must be in favor of the defendant. Our attention has not been called to any evidence tending to show that when defendant repudiated the contract Chapman was, or probably would be, unable to complete the building by September 1st, nor to anything in this record showing that completion of the building by September 1st was one of the terms of the agreement.
But supposing there was evidence favorable to the defendant upon both of these points, Chapman’s demonstrated inability to complete the building by the very day specified would not justify the other party in rescinding the agreement in advance unless completion on or before a certain date was in express terms made essential to the agreement, or else was so vital a matter that a failure of performance by Chapman in this regard would render performance of the agreement by the company a thing different in substance from what it had stipulated for, and not a matter to be compensated in damages. It is obvious, however, that a short delay in the completion of the building beyond September 1st could readily be compensated in the adjustment of interest or otherwise; and so the time of completion was not of the essence of the agreement unless made so by the parties themselves.
Where time is of the essence of the agreement, a breach in this regard will bar a recovery by the one in default, and will entitle the other to abandon the contract. But where performance upon a precise date is not vital and may be compensated in damages, mere delay, in the absence of fraud or the like, will not justify the other party in abandoning the
The legal fault in the sixth request consisted in this, that it required the jury to treat inability on the part of Chapman to complete the building by September 1st as a sufficient ground for rescission or abandonment by the other party, even though the jury did not find that completion on or before that date was by the parties made an essential term of the agreement. For this reason, if for no other, the refusal of the sixth request was justified.
Considering these exceptions as merely negativing the correctness of the instructions given, they are both multifarious, in that they challenge an instruction that contains several different legal propositions.
Eor the proper administration of justice in our common-law courts it is important to enforce the established principle that the proper function of an exception is to direct the mind of the trial judge to a single and precise point in which it is alleged that he has erred in law, so that mistrials due to inadvertence and errors may be obviated. If an exception does not do this it furnishes no ground for reversal on error. An exception which challenges an instruction to the jury that combines several different propositions of law is of no avail unless it show the precise ground of objection; in which event the review is confined to the specific ground alleged. Packard v. Bergen Neck Railroad Co., 25 Vroom 553, 558; Addis v. Rushmore, 45 Id. 649, 651, and cases cited.
The instruction above quoted is indubitably correct, at least with respect to the right of the plaintiff to recover so much as he lost because of the breach of the contract by the
The grounds alleged for the exceptions add nothing to their effective force. The instruction was specific and intelligible enough; and the assertion that it did not define the proper measure of damages amounts to nothing in the absence of any effort on the part of defendant’s counsel to state what was the proper measure of damages. The objection "that these are not such elements of damage as the jury have a right to consider,” is merely negative, and amounts to no more than a general exception to the instruction given.
The defendant, however, submitted five specific requests upon the question of damages, and to the refusal of these exception was duly taken. They required that the jury should disregard:
1. The value of the frame building removed.
2. The rental value of the premises while the construction of the new building was under way.
■ 3. The amount of freight paid on materials for the new building.
4. The amount paid for stone for the foundations of the new building.
5. The amount spent for iron work on foundations.
We stop to say that the question presented by the first of these requests is not whether the entire value of the frame building ought to have been allowed in the damages. The trial judge charged, merely, that the jury should allow what the plaintiff lost on the removal of the building. This might or might not be equivalent to the value of the building in situ. That value was given in evidence as bearing some relation to what the plaintiff lost by its removal. The instruction requested by the defendant upon this point was that the jury should wholly disregard the value of the frame building removed.' Compliance with this would have excluded-recovery for what the plaintiff lost by its removal.
The theory upon which plaintiff may recover such losses as are referred to in the five requests is that the losses arose from acts done and expenditures made by Chapman in reliance
That the parties contemplated, when the agreement was made, that Chapman was to remove the.old building and proceed to construct a new building in its place, incurring expenditures for that purpose, and in the meanwhile losing the rental value of the property, and that these outlays were incurred on the faith and strength of the defendant’s agreement, if disputed at all at the trial, is, in view of the verdict, now indisputable. And there was evidence from which the jury had a right to find that as a direct consequence of defendant’s repudiation, coupled with the fact that defendant at the same time retained the mortgages upon the property and left them uncanceled of record, so that Chapman could not secure funds elsewhere, he was obliged to abandon the building operation, •and sustained a loss of what he had expended on the strength of it, except so much as was recovered through the sale to Sheppard and Hackney.
The present action is not brought for a mere breach of the agreement. In strictness there can be no breach until the time for performance arrives. The action is for a repudiation in to to, in advance of the time for performance, and is sustained upon grounds outlined in Hochster v. De La Tour, 2 El. & B. 678; 22 L. J., Q. B. 455; 17 Jur. 972; 6 Eng. Rul. Cas. 576; the doctrine of which case was approved by our Supreme Court in O’Neill v. Supreme Council, 41 Vroom 410; and adopted by this court in the former decision of this case. Holt v. United Security Life Insurance Co., 45 Id. 795.
As pointed out in the 0’'Neill case, when such repudiation ■occurs the injured party may, if he desires, rescind the contract in toto, that is, put it at an end as if it had never been made. But instead of doing this, he may treat the contract as ended merely for purposes of further performance, and hold the wrong-doer liable for the damages sustained by reason of the repudiation. Such is the aspect of the present case.
The fundamental and cardinal'principle that underlies all
In the present case the plaintiff appears to have made no effort to prove the value of the contract nor the profits that he lost by reason of its repudiation. The reason is obvious. The contract was a very special one, not to say unusual. By its terms Chapman was not only to have from the defendant the $32,500 to reimburse him for the cost of his new building, but was to be under no obligation to repay it saving from the proceeds of the endowment policies upon the lives of himself and Holt, which might mature shortly, and, at the latest, at the end of twenty years, Chapman in the meantime paying the stipulated premiums. Ho rule is suggested, nor aré we aware of any, by which the value of such a contract may be estimated or the profits to arise from it be ascertained. And so, whether Chapman’s property, when completed as proposed, would have been worth more or less than it would have cost him through performance of such an agreement, was of course unascertained, and probably unascertainable.
But the suggestion that he ought to have been limited to nominal damages because he might have elsewhere procured the money wherewith' to complete the building, and presumably at no greater cost than under the agreement with the defendant, is, we think, entirely inadmissible; among other reasons because there was nothing in the evidence to show, nor can we without evidence presume, the existence of a market in which money may be procured upon like terms at any rate of interest or premiums; and besides, the existence of the mortgages in the hands of the defendant and undischarged upon record, presumptively constituted a practical
Losses directly incurred, as well as gains prevented, may furnish a legitimate basis for compensation to the injured party. And among such immediate losses, expenditures fairly incurred in preparation for performance or in part perform-' anee of the agreement, where such expenditures are not otherwise reimbursed, form a proper subject for consideration where the party injured, while relying upon his contract, makes such expenditures in anticipation of the advantage that will come to him from completed performance.'' Where the profits that have been lost are shown with-such certainty as to entitle the plaintiff to damages under this head, we do not mean to say that he may have recovery for his preliminary outlay in addition, for this would seem to involve a double recovery. But where one party repudiates, and thus prevents the other from gaining the contemplated profit, it is- not, we _think,_ to., be presumed in favor of the wrong-doer-(in the-absence of evidence) that complete performance of the agreement: would not have resulted in at least reimbursing the. injured party forTiis"outIay fairly made in part performance of it. OrdirrarilyTihe performance of agreements" results in advantage to both parties over and above that with which they part in the course of its performance, otherwise there would soon be an end of contracting. And it seems to us, upon general principles of justice, that if he who, by repudiation, has prevented performance, asserts that the other party would not even have regained his outlay, the wrong-doer ought at least to be put upon his proof.
This view of the matter is, we think, abundantly supported by authority.
In Pond v. Harris (1873), 113 Mass. 114, 122, it was held, in an action for the wrongful revocation of an agreement to submit a controversy to arbitration, that the plaintiff might recover for his loss of time and for his trouble and expenses in preparation for the hearing before the arbitrators, including employment of counsel and taking of depositions and paying witnesses, so far as those preparations and expenditures
In United States v. Behan (1883), 110 U. S. 338, 344, Mr. Justice Bradley, in delivering the opinion of the court, said: “The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby. If the breach consists in preventing the performance of the contract, without the fault of the other party, who is- willing to' perform it, the loss of the latter will consist of two distinct items or groups of damage, namely-— first, what • he has already expended towards performance (less the value of materials on hand); secondly, the profits that he would realize by performing the whole contract. The second item, profits, cannot always be recovered. They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires. * * * If not proved, or if they are of such a remote and speculative character that they cannot be legally proved, the party is confined to his loss of actual outlay and expense. This loss, however, he is clearly entitled to recover in all cases, unless the other party, who has voluntarily stopped the performance of the contract, can show the contrary. * * * When a party injured by the stoppage of a contract elects to rescind it, then, it is true, he cannot recover any damages for á breach of the contract, either for outlay or for -loss of profits; he recovers the value of his services actually performed as upon a quantum meruit. There is then no question of losses or profits. But when he elects to go for damages for the breach of the contract, the first and most obvious damage to be shown is the amount he has been induced to expend on .the faith of the contract, including a fair allowance for his own time and services.' If he- choose to go further, and claims for the loss of anticipated profits; he may do-so, subject to the rules of law as to the character of profits which may thus be claimed. It does not lie, however, in the mouth of the party who has voluntañly^d^wToñgíuny put an end to the contract to say that the party injuredjhas not been damagedjat Jnast
This was a case of one who had a contract with the government for the construction of harbor improvements, and who had been unjustly prevented from performance. His recovery included outlay only, and not profits. What is said in the opinion respecting the recovery of profits in addition to outlay is obiter, and, as already intimated, we are not inclined to approve of it.
In Bernstein v. Meech (1891), 130 N. Y. 354, the defendants agreed to furnish to the plaintiff the use of an opera house for certain performances by a theatrical company, and the plaintiff agreed to furnish the services of the company and to take as consideration fifty per centum of the gross receipts from the performances. After the plaintiff had incurred expense in making preparations for performance of the agreement on his part, the defendants gave him notice that they had arranged for another theatrical company to occupy the opera house on the dates in question, and plaintiff was thus prevented from giving the performances that had been contemplated. Upon the question of damages the New York Court of Appeals said (130 N. Y. 359) : “The general rule on the subject would permit him, in case of breach by the defendants, to recover the value of his contract. And that was dependent upon the receipts tobe realized from the contemplated
■ lú: Worthington & Co. v. Gwin (1898), 119 Ala. 51; 43 L. R. A. 383, the court said: “The damages for the breach of a contract of this character, when its full performance is prevented by the one party without fault on the part of the other, may consist of one or the other of two items— first, the profits that would have been realized by the full performance; and second, if there would not have been any profits, or if the proof fails to show what would have been the amount, the reasonable expenditures made and loss of time, less the material on hand. Danforth v. Tennessee and Coosa Railroad Co., 93 Ala. 620; United States v. Behan, 110 U. S. 344. Both items are not, of course, recoverable, since the profits would necessarily include the expenditures for tools, &c., less their value at the time the work on the contract ceased.”
And see Cederberg v. Robison, 100 Cal. 93; Athletic
Since the disputed matters that were allowed by the trial judge, against specific objection, to be considered by the jury as elements in the ascertainment of damages, were in the nature of outlay, fairly made by Chapman upon the faith and strength of the contract and in furtherance thereof, and since it appeared that repudiation of the contract by the defendant brought a loss upon him with respect to these items beyond what he was able to recover by disposing of the property, we think the trial judge did not err in refusing the several requests that would have excluded these matters from the consideration of the jury.
The above discussion covers all the questions that were raised by the argument submitted for the plaintiff in error in this court. Other questions that might have been raised upon the assignments of error and bills of exceptions we are of course not required to consider. Lewis v. Lewis, 37 Vroom 251; Roofing Co. v. Leather Co., 38 Id. 566, 571; Hopwood v. Atha & Illingworth Co., 39 Id. 707, 713. And since it would be manifestly unjust to the defendant in error to reverse the judgment upon any ground not raised in the argument, the remaining assignments of error will be treated as waived.
The judgment under review should be affirmed.
For affirmance—The Chancellor, Chief Justice, Eeed, Parker, Bergen, Voori-iees, Minturn, Bogert, Vredenburgh, Dill, J.J. 10.
For reversal—Garrison, Swayze, Trenchard, Vroom, Gray, J.J. 5.