Ross v. Curtis. commissioners to act in conjunction with said supervisor, to borrow the sum of $25,000 on the credit of the town for a term of years, and to execute therefor, under their official signatures, a bond or bonds, on which the interest should be made payable on the first of March in each year, and for the successive years after the first of March, 1852. And the moneys thus borrowed were directed to be paid over to the president and directors of a certain rail road company therein mentioned, to be expended by said company in grading and constructing its rail road. The fourth section of the act, after directing how the money shall be levied, collected and paid over to the treasurer, proceeds: "which sum shall be paid by the treasurer of Cayuga county, at his office, to the supervisor of the town of Sterling, on or before the 25th day of February, which sum shall be applied by said supervisor in payment on the bonds, on or before the first day of March succeeding." The board of supervisors of Cayuga county caused the money required to pay the interest upou the bonds for the year 1857, to be levied and collected. On the 25th day of February, 1857, the defendant (he being then supervisor of Sterling) applied to the treasurer, and received from him money sufficient to pay the interest upon all of the twenty-five bonds, and thereupon gave him two receipts, each for the same amount, and in the following form: Cayuga County Treasurer's Office, } Auburn, February 25, 1857. Received from Horace T. Cook, treasurer of the county of Cayuga, eight hundred and seventy-five dollars, to apply on the moneys collected in the town of Sterling, to pay the interest on the bonds issued by said town. (Signed) HIRAM C. CURTIS, Supervisor of Sterling." The plaintiff demanded of the defendant payment of the interest due upon his five bonds, which was refused, and this Ross v. Curtis. action was thereupon brought to recover the same. The action was tried at the Cayuga circuit, and the plaintiff nonsuited. Upon appeal the nonsuit was set aside, the general term unanimously holding that the action for money had and received was the appropriate remedy. Upon a re-trial, judgment was rendered for the plaintiff for the interest due, with interest thereon from the time of the demand. From that judgment an appeal was taken by the defendant to the general term. D. H. Marsh, for the appellant. Wright and Pomeroy, for the plaintiff. By the Court, JOHNSON, J. The action is for money had and received by the defendant, to the use of the plaintiff. The right of the plaintiff to maintain this action is entirely settled, so far at least as this court is concerned, by an unanimous decision in the case of Murdock v. Aikin, (29 Barb. 59.) It cannot be necessary to review the grounds of that decision. The principle is elementary that where one person receives money for another, and the law makes it the duty of the person thus receiving it to pay it to the person for whom or for whose use it is thus received, a promise to pay it in accordance with the duty is always presumed, and a privity established as matter of law, between the parties. It is unnecessary to cite authorities for so plain and well established a proposition. The defendant had no right to receive the money for any purpose other than to pay it over to the plaintiff and others similarly situated; and his receipt to the county treasurer shows that he received it for that purpose and no other. His duty to pay the moneys thus received, in satisfaction of the bonds, is prescribed by statute. (Session Laws of 1857, p. 546, § 4.) After thus receiving the money, he held it as trustee or depositary, for the plaintiff and other bondholders, and should not be permitted to go behind the payment of the Lowenstein v. Chappell. money to him, to question the validity of the bonds, in payment and satisfaction of which the money has been thus advanced by or collected from the obligors. The statute constituted him the official agent of the plaintiff and other bondholders, to receive the money, when collected and paid into the county treasury, and pay it over to them. But if he could be allowed, with the plaintiff's money thus in his hands, to question the validity of the bonds, that question is fully settled by the decision of this court in the cases of Gould v. The Town of Venice, and Starin v. The Town of Genoa, (29 Barb. 442.) I find nothing in this case to distinguish it at all in principle from the other cases decided by us, before referred to. The judgment must therefore be affirmed. [MONROE GENERAL TERM, December 5, 1859. T. R. Strong, Smith and Johnson, Justices.] LOWENSTEIN vs. CHAPPELL. The law will not allow a party, in an action for the breach of a contract, to recover, as damages, losses which he has sustained in the performance of his contracts with others, even where such contracts are founded, in some measure, upon the contract alleged to have been broken. On the 20th of February, 1857, the defendant agreed to rent to the plaintiff a store, for the term of one year from the 1st of April then next. Relying upon this agreement, the plaintiff sold to M. the lease of a store he then occupied, agreeing to give possession on the 2d or 3d of April; and M. suffered the plaintiff to occupy a room in the store, for his goods, in the mean time. For the purpose of protecting his goods from damage while the store was undergoing repairs, the plaintiff packed them up, and they sustained some damage in consequence of the packing. In an action to recover damages of the defendant, for a breach of his agreement; Held that the packing of the goods not having been done for the purpose of removing them to the store of the defendant, nor being necessary, for that purpose, the plaintiff could not recover for any injury to the goods occasioned by the packing thereof; such injury not flowing directly, or necessarily, from the breach by the defendant, but from the plaintiff's agreement with M. to give up to VOL. XXX. 16 Lowenstein v. Chappell. him the store in which the goods were situated, and that they should in the mean time occupy a particular space therein. Held also, that the plaintiff was not entitled to recover interest on the value of his entire stock of goods which he intended to put into the defendant's store, during the time he was by the defendant's breach of contract prevented from exposing them for sale. OTION for a new trial, founded on a case and exceptions. M The complaint alleged that on the 20th day of February, 1857, the defendant agreed to rent to the plaintiff a certain store, No. 74 State street, in Rochester, for the period of one year from April 1, then next, for the sum of $1000. That the plaintiff was, at the time of this agreement, in possession of a store, No. 67 State street, under a lease for five years from September 1, 1856; and after this agreement with the defendant, and relying thereon, he sold and assigned the lease to one Minges, and agreed to give possession April 1, 1857. The defendant refused to execute a lease or give possession of No. 74. After the 20th day of February, 1857, and before the 1st day of April, the plaintiff bought a large stock of goods, which he designed to keep in the store of the defendant, and brought them to Rochester at great expense. That by reason of being deprived of said store, he was prevented from selling the goods in said store in the ordinary way of retail trade, and making large profits; but was obliged to, and did, sell the same at auction, and at wholesale, whereby he sustained great damage. He was also thrown out of business, with a stock of goods on hand, and put to large expense in and about the same, and in securing another store for the same; and deprived of large profits which he otherwise would have made by the sale of the same, during a long time, and before he was able to secure another store for the same. The answer was a general denial. The plaintiff, on the trial, proved that he agreed to rent his store to one Minges, and give him possession thereof on the 3d or 4th day of April, but Minges suffered the plaintiff to occupy a room in the store. That the plaintiff, in order to put his goods therein, and to protect Lowenstein v. Chappell. them from damage by the repairs which Minges made, was obliged to pack the goods. That in consequence of packing the goods, they were mussed up, and some ruches and flowers had to be replaced. Exceptions were also taken to the charge of the judge, and to his refusal to charge as the defendant requested. The jury found a verdict in favor of the plaintiff for $50. Wm. F. Cogswell, for the plaintiff. Geo. F. Danforth, for the defendant. By the Court, JOHNSON, J. Whether the plaintiff was entitled to recover, for the injury happening to the goods, in consequence of packing them, must depend upon the question whether such injury was the direct and necessary consequence of the defendant's neglect or refusal to perform his agreement. The general rule is that the party injured by a breach of a contract is entitled to recover all his damages, including gains prevented, as well as losses sustained, provided they are certain, and such as might naturally be expected to follow the breach. (Griffin v. Colver, 16 N. Y. Rep. 489.) The goods injured, were packed not for the purpose of removing them to the store which the defendant had agreed to lease to the plaintiff, but for the purpose of getting them out of the way of the tenant to whom the plaintiff had sold his lease of the store in which they were then situated, and where they had been previously kept for sale, while such store was undergoing repairs, in order to prevent them from being injured by the repairs, and also to place them in the room, in the same store, which the plaintiff was permitted to occupy by the new occupant. The plaintiff testifies that they had to pack the stock in such space as Minges, the new occupant, allowed them to occupy. In consequence of the packing, as he says, "the goods were mussed up, and some ruches and flowers had to be replaced." From this cause, he estimated that the goods had |