72 N.J. Eq. 165 | New York Court of Chancery | 1906
This is an appeal from the disallowance by the receiver of the shipbuilding company of a claim presented by the United States.
The claim is one for damages for breach of a contract by the shipbuilding company to construct two vessels for the price of $105,000. After twenty per cent, of the work of construction had been done in the case of one of the vessels, and twelve and
The first contention is that the company was disabled from performing because the government did not make those payments on account to which it was entitled.
The contract provided for “payment to be made at such times and in such amounts as the officer in charge of the work might elect.” The effort was to vary this contract by evidence to the effect that government officers stated, when attention was called to this clause, just before signing, that payments could be expected about every thirty days. No payments, in fact, were made. The statement, if proved, is obviously at variance with the terms of the writing, and for that reason inadmissible. Naumberg v. Young, 44 N. J. Law (15 Vr.) 331; Hallenbeck v. Chapman, 72 N. J. Law (43 Vr.) 202. It is none the less so because it is put in as evidence of custom.
It is secondly contended that the United States took too much time to approve the plans for portions of the work from time to time submitted, and so prevented the work from being done. These plans were prepared by the shipbuilding company as the work progressed and submitted to the quartermaster’s department in New York. They were frequently returned with modifications and corrections. The company prepared new plans and blue-prints with these modifications and corrections embodied in them. They were again submitted to the quartermaster’s department, and, if satisfactory to it, sent to the American Bureau of Shipping, for approval by that bureau, the specifications so providing. After examination by this latter body they were returned to the quartermaster’s department, which returned them to the shipbuilding company. This took time. Mr. Master, the receiver’s witness, said on his direct examination that the plans were very much delayed, but his cross-examination, taken in connection with the written correspondence and with the evidence of Mr. Scott, tends to show that the government acted with reasonable diligence.
I can find nothing in the evidence going to show that the failure to perform the contract was due to delay in the quartermaster’s office.
The point upon which receiver’s counsel principally relied was that it was the duty of the government to have mitigated the loss—to have taken the partially-constructed boats and completed them.
It is said in Benj. Sales (4th Am. ed.) ¶ 1327 that
“in every case the buyer, to entitle him to recover the full amount'of damages, must have acted throughout as a reasonable man of business, and done all in his power to mitigate the loss.”
The supreme court of the United States (Wicker v. Hoppock, 73 U. S. 94, and Warren v. Stoddart, 105 U. S. 224) lays down the rule as follows: “Where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach of it at a trifling expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquents with such damages only as with reasonable endeavors and expense he could not prevent.”
The rule applies as well to cases of contract as to cases of tort (Sedgw. Dam. ¶ 205), and may be variously illustrated. If A breaks down B’s fence, and B does not repair till months after-wards, in consequence of which cattle get in and destroy the next year’s crop, B cannot sue for- the loss of the crop, but only for the cost of repairing the fence. Loker v. Damon, 17 Pick. 284. If a servant be wrongfully discharged, it is incumbent upon him1 to seek other similar employment, and the amount earned, or that might, with reasonable effort, have been earned, will go in reduction of his damages. Larkin v. Hecksher, 51 N. J. Law (22 Vr.) 135. If A and B enter into a contract, by the terms of which A is to give B possession of certain machines, which B is to sell for A on commission, and these machines are
But the rule requires such exertions only as are reasonable. This is illustrated by two cases in the supreme court—The Baltimore, 8 Wall. 377, and The Falcon, 19 Wall. 75. In the former case' a schooner was sunk in a collision with the steamer Baltimore in water so shoal that the masts projected eighteen feet above the surface. It was found that the vessel could have been easily raised and repaired, and it was held that the owner could not recover damages as for a total loss. In the latter case the vessel sank in five fathoms of water, and it was found that she could hot have been raised and repaired without a large expenditure of time and money. It was held that the steamer Falcon was liable for her full value. In the case of The Havilah, 50 Fed. Rep. 331, the court refused to allow as damages the cost of raising and repairing a sunken vessel so far as that cost exceeded the value of the boat at the time of the collision.
In the light of these adjudications, let us look at the facts of the present case. The two vessels were to cost $105,000. The lowest bid which the government could obtain on readvertising
The suggestion that article-5 of the contract, which gives the United States power to complete the work, is compulsory, is completely met by Bernz v. Marcus Sayre Co., 52 N. J. Eq. (7 Dick.) 275, lately decided by the court of errors and appeals.