128 P. 105 | Okla. | 1912
This case presents error from the district court of Coal county. The action was brought and judgment rendered for and on account of the negligent delay of fifteen days on the part of the railway company, plaintiff in error, of an outfit of well-drilling machinery. *13
But one question of substantial merit is presented, which arises on the admission of evidence allowing recovery by plaintiffs, defendants in error here, of certain wages due two employees of plaintiffs at $5 per day each during the said delay. Recovery was allowed for the usable or rentable value of the machinery, also for certain portions of it which were lost, and for expenses incurred by plaintiffs in pursuing and recovering it. As the petition did not aver notice to the railway company that the plaintiffs had then engaged the said employees, whose wages would be lost if the delivery was delayed, and as the evidence shows no such notice to have been given at the time at which the contract was entered into, the allowance of the same by the court was error.
Section 2888, Comp. Laws 1909, lays down the rule, providing that "for the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." This is the rule applicable in this case; and where special damages are claimed, such as those here involved, in order to render the party charged liable therefor, the claim must be based upon a notice given at the time the contract is made.
The case of Hadley v. Baxendale, 9 Exch. 341, is relied upon by counsel for defendant. The case of Illinois Cent. R. Co. v.Johnson Fleming,
"The rule which the plaintiffs below invoke, and upon which they rely in this court, is that announced in Hadley v.Baxendale, 9 Ex. 341. This rule has been so frequently quoted and applied in the opinions of this court that it is unnecessary to set it out literally here. It is sufficient to say that under this rule a party who sues for a breach of contract is entitled to recover damages which result from that breach according to the usual *14
course of things, or such as may be reasonably supposed to have been in the contemplation of both parties, at the time the contract was made, as the probable breach of it. Under the latter branch of the rule; it has been universally held that in order to recover special damages, such as are claimed by the defendants in error in this case, the party against whom recovery is sought must have had such notice as would give him to understand that a breach of the contract would probably result to the other party in these special damages. InMachine Co. v. Compress Co.,
In the case of Texas Pacific Ry. Co. v. Hassell,
"Mr. Hutchinson, in his work on Carriers (section 776), lays down the rule thus: 'Where the goods are not intended for sale in the market of destination, but are intended to serve some specific purpose of the owner, the rule that the carrier will be liable for depreciation in the market value during his negligent delay will, of course, not be applicable; and in the absence of special circumstances which may make the carrier liable for some special loss, or for the expense to which the owner may be put by his negligent delay, he could be held liable only for the inconvenience to which the owner had been put by being deprived of the use of his property during the time of the delay, which must be determined as a question of fact by the jury by ascertaining from the evidence the value of its use, the criterion *15
of which would be, in most cases, its rental value during the delay; or, in case of an absolute refusal to transport according to contract, for such time as would be requisite to obtain the article by another conveyance, or from some other source.' This rule is supported by the great weight of authority. It conforms to the well-recognized rule announced in the leading case of Hadley v. Baxendale, 9 Exch. 353, which is: 'Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered 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.'Express Co. v. Darnell,
In the case of Priestly v. Northern Ind. Chicago R. Co.,
"The true rule is laid down in Green v. Mann,
The foregoing cases announce the uniform rule which seems to obtain throughout every jurisdiction. Other authorities are collated in the notes to section 776, Hutchinson on Carriers, vol. 3, section 136, Hale on Bailments and Carriers, and 6 Cyc. 449, note 17.
We have taken note and considered the other exceptions to the conduct of the trial, but, in our judgment, they are without merit. The damages allowed, with the exception of the wages for the employees, in our judgment, were proper. The judgment rendered was for $525. Just how thus sum was reached by the jury, the record does not disclose, and we are not able to ascertain it. The proof in reference to the wages of the employees showed that the same amounted to $150, which was undisputed, and probably was allowed by the jury, as the court instructed them that it was a proper element of damage. Under these circumstances the case is remanded to the trial court, with instructions to grant plaintiffs 30 days within which to remit $150, and the judgment, with costs in this court divided, will otherwise stand affirmed. In the event this is not done, and no remission is made, the judgment of the trial court will be set aside and plaintiff in error granted a new trial.
TURNER, C. J., and HAYES and KANE, JJ., concur; WILLIAMS, J., not participating. *17