29 Barb. 633 | N.Y. Sup. Ct. | 1859
Unless it shall be held that there Was a special contract in this case to deliver the apples in Hew York within four days, the case comes within the case of Wibert v. The New York and Erie Rail Road Company, (19 Barb. 36.) It cannot be claimed that any special agreement was made to deliver the apples in Hew York at any specified time. The plaintiff, as he says, went to Dunkirk on the 3d of December, to see what it would cost to take his apples to Hew York, and was told 60 cents a hundred; and he told the clerks he would bring the apples along and have them there by the 7th of December. A part of the apples were taken to Dunkirk on the 4th of December, a part on the 5th, and the remainder on the 7th, When the plaintiff took a receipt in the usual form. He asked how long it would take to get them to Héw York, and the answer was, as he says, three or four days. He then went on to Hew York. There was no contract to deliver apples in Hew York in four days. The plaintiff made the inquiry after the apples were delivered, and the clerk expressed the opinion that they would be in Hew York in three or four days.
This point in the case may be dismissed. The case was put, on the argument, mainly upon the negligence of the defendants, or an implied contract to deliver within a reasonable time. The justice proceeded upon the ground that if the defendants were negligent, or failed to deliver the apples in Hew York in a reasonable time, they were liable in damages, and the measure of damages was the difference in the price on the day when they should have been delivered, and the day they were delivered. The justice and the county court must have followed Kent v. The Hudson River Rail Road Company, (22 Barb. 278,) in which Wibert v. The New York and Erie R. R. Co., is examined and overruled. Grenerally we follow the more
In Wibert v. The New York and Erie Rail Road Co., the precise question raised in this case was presented, and it was carefully examined and considered by the supreme court, at general term, in this district, and although it has been overruled in Kent v. The Hudson River R. R. Co., we ought to adhere to our decision, unless we are satisfied that we were in error, until the law shall be settled by the court of appeals. I have carefully read the opinion of brother Smith in Kent’s case, and it has failed to convince me that the court in this district erred in Wibert’s case.
I might stop here, as I do not know that I can present my views with more clearness now, than they are expressed in the opinion so elaborately reviewed by brother Smith. It seems, however, that I was unsuccessful in my effort to show that certain cases, upon which he very much relies, had no legitimate application to the question we were considering; also that some of my positions and arguments were misapprehended. In Wibert’s case an elaborate brief had been prepared by the plaintiff’s counsel, to sustain the ruling of the referee. Many of these cases, it was conceded, were hot in point, unless the principles they established should, by analogy, be applied to the question discussed. In the opinion an attempt was made to present or bring into view all the well settled, general rules relating to damages for the breach of contract or failure to perform a duty imposed by law, which it was claimed or supposed could have any application to the question under consideration. Hence, after showing that the liability of a common carrier for a tardy delivery, did not rest upon the same principles as the liability for a total failure to deliver, and showing upon what principles the liability did rest, I proceeded to state the general, well settled, universally recognized rules, relating
Starting with these general rules, taken from elementary authors, and supported by adjudged cases, I endeavored to show that the decline in the price of the butter was not a natural consequence of the injuiy complained of, viz: the unreasonable delay in delivering the butter. I could see no connection then, nor can I now, between the two things. I then proceeded, hypothetically, to consider that part of the rule which requires that the damage should be a proximate consequence of the act complained of; and I endeavored to show that the damages or loss arising from the decline in the price of the butter, was not a proximate consequence of the delay in delivering the butter, but that such damages would be too remote, too contingent, too speculative. It was remarked that it was difficult to consider this part of the rule, until it could be seen that the fall in the market price of the butter resulted from the breach of duty by the defendant. I did, however, proceed to state some of the rules, and refer to some of the cases relating to proximate damages; and I extracted some of the language of Nelson, Oh. J., in Masterton v. Mayor of Brooklyn, (7 Hill, 67,) speaking of remote and contingent damages. I did not refer to the case itself as an authority one way or the other, upon the question involved in Wibert’s case. Indeed, I did not suppose the case itself had any application to the case then under consideration; but brother Smith has made much use of the case to overthrow my positions and arguments; and although I thought I understood the ground upon which Masterton v. Mayor of Brooklyn was decided, my respect for brother Smith has caused me to reexamine it, and I shall in the proper place again' refer to it.
In Wibertfs case a strong argument was made to induce the court to adopt, by analogy, the rule of damages for a breach of contract between vendor and vendee, The court refused to apply such rule, for the reasons stated in the opinion, and to which, without repeating them, I refer.
Before proceeding to the cases upon which Justice Smith relies, and which were remarked upon by me in the opinion in Wibertfs case, I will refer to a remark of his, showing, as I think, that he has fallen into a serious error as to the character of the rule of damages applicable to the case, though he supposes me to have committed the error. After making several extracts from my opinion,- he says: “ The theory of damages, as suggested and involved in these extracts from the opinion of the learned judge, is, that the damages properly recoverable in an action, must be the direct and immediate consequence of the injury or breach of duty complained of. The rule of damages thus enunciated belongs to the large class of injuries, direct or immediate, for which, under the old nomenclature, the action of trespass was the appropriate remedy, and practically ignores the large class of consequent injuries, for which trespass on the case or assumpsit was the proper form and manner of the action.”
I certainly did not so understand the matter while considering Wibertfs case. I knew that the action in that case was founded, either upon contract implied by law, and arising out of the duty of a common carrier, or for negligence in the performance of that duty; and I stated that the rule would, in the case under consideration, be the same, whether the
As to Masterton v. Mayor of Brooklyn, (7 Hill, 67,) so often referred to by brother Smith, it was decided upon the simple principle that when one party to an executory contract puts an end to it, the other party is entitled to an equivalent in damages—the gains and profits he would have realized from a performance of the contract. The case comes directly within the rule requiring that the damages be the natural and proximate consequence of the act complained of. The plaintiffs had contracted to deliver stone at a stipulated price; after delivering a portion of them, the defendant refused further performance of the contract. The natural and proximate consequence of this breach of the contract, by the defendant, was the loss by the plaintiffs of all the profits and gains they would have made by performing the contract. This principle had long been settled, but I was not able to see its application to Wibert’s case.
It was my intention to remark further upon Davis v. Garrett, (6 Bing. 716,) and Bracket v. McNair, (14 John, 170,)
Smith v. Griffith, (3 Hill, 333,) is referred to by Justice Smith. It was the case of the mulberry trees, that were injured while in the custody of the carrier, by reason of the long neglect to transport and deliver them. The decision was put upon the ground of the negligent loss or injury of the goods entrusted to the carrier to transport. I do not understand the learned judge in Kent’s case to claim that this case is in point, except by way of analogy. He also refers to the rule of damages for the breach of executory contracts between vendor and vendee. After making an extract from Judge ¡Nelson’s opinion in Smith v. Griffith, concluding: “ Assuming that there is no defect in the quality, the fair test of its value, and consequently of the loss to the owner, is the price at the time in the market.” Judge ¡Nelson is here speaking of cases where the goods have been injured by the negligence ■of the carrier, and in answer to the offer to prove that some years after the injury, it was demonstrated the mulberry trees were of little or no value. Justice Smith remarks that the case, in its facts and the principles upon which it is decided, is quite in point in opposition to the opinion in Wiberfs case. This depends upon the question whether the rule which gives damages against a carrier for injury done to the property, by his neglect, shall be applied to a case of neglect to deliver in due time, though the goods are in fact delivered in good order. In one case it is certain that the owner has sustained damage resulting from the negligence of the carrier. His injured goods cannot be as valuable as they would have been, if not injured. In the other case the goods have not been injured. They cannot be sold for as much in market as they could
J ustice Smith says, the contingency in such cases must be at the risk of the party who is guilty of a breach of contract or a breach of duty. This is the very point to be established. Establish it as a rule that in all cases of a breach of contract, or breach of duty, the bailee is to respond in damages to the bailor for any loss he may have sustained, however contingent, and though not contemplated by either party at the time of the bailment, and its consequences will be very sweeping. I borrow or hire my neighbor’s horse for a short journey. I over stay the time I was to be absent, a day, and on that day the owner had an opportunity to sell the horse for $500, and would have sold him had he been at home. The opportunity for making the sale is lost, and the owner, a month after, makes the sale at $300, the best price he can get. Am I. liable to respond to him in damages to the amount of $200 ? See numerous cases referred to in Sedg. on Dam. ch. 3, en-tiled “ Of remote and consequential damages.”
Justice Smith refers to Scovill v. Griffin, (2 Kern. 509,)" decided in the court of appeals, after the decision in Wibert’s case; and he quotes from Justice Edwards’ charge to the jury what, undoubtedly, sustained his position. This part of the charge did not come under review in the court of appeals. It stands there simply as the opinion of a respectable judge at the circuit. All that was decided in the court of appeals was, that the omission of a common carrier to transport and deliver property to the consignee within a reasonable time, does not necessarily render him liable for its value. The carrier is liable for the damages caused by such omission; but the owner cannot, on the sole ground of unreasonable delay in the conveyance and delivery of the property, refuse to receive it, and recover against the carrier as for its conversion. The
In conclusion, as I understand the case, the question had not been decided until Wibert’s case; and in that it was simply decided that the referee erred in holding that the measure of damages against a common carrier, for a delay in delivering the goods, was the difference in the price of the goods in market on the day they should have been delivered and the day they were delivered, in case there had been a decline in price. It was not affirmed that in such a case no damages could be recovered; nor were any suggestions made as to what damages might be recovered. These questions were left for decision as they should arise. The bailor may, in such a case, undoubtedly recover an idemnity for any legitimate damages he has sustained—damages which are the natural and proximate consequence of the breach of the contract or duty—damages that naturally result from the breach, and which are not too remote, speculative or contingent. This may include interest upon the value of the property during
Greene, Marvin, and Davis, Justices.]
The judges composing the court in the seventh and eighth districts differ in opinion, and they will probably adhere to their respective decisions until the question shall be settled by the court of last resort.
The judgment of the county court and that of the justice must be reversed.