Terry v. New York Central Rail Road Co.

in the absence of his father to show his ticket, pay his fare, or give any account of himself, and not indicating by any signs his mental derangement, was, before his father found him, put out of the cars, and left to wander on the rail road, and was run over by the next train and killed. The father having taken letters of administration brought an action against the rail road company, under the act of December 13, 1847, to recover compensation of them for causing the death of his son by their wrongful act, neglect or default. His action was defeated, on the ground that it appeared that his own carelessness or negligence, as the temporary guardian of his son, contributed to the injury complained of. (Willett's Adm'r v. The Buffalo and Rochester R. R. Co. 14 Barb. 585.)

From the above decisions, and those cited to support them, we may extract the following propositions as law:

First. That in all actions brought to recover damages for an injury alleged to have been occasioned by the negligence of the defendant, whether the defendant be an individual or a corporation, to entitle the plaintiff to recover, he must show some fault on the part of the defendant; that that fault will not be inferred merely from the injury, unless the defendant is a common carrier of persons and the plaintiff a passenger, as in the the case in 16 Barb. 113; upon which hypothesis we are not called upon to give an opinion.

Second. That in such action a plaintiff cannot succeed, if it appears that his own misconduct co-operated with the wrongful act of the defendant, to produce the injury complained of.

Third. That the plaintiff, in such an action, cannot recover, if it appear that the injury complained of was received by him while he was trespassing upon the defendant, without proving that such injury was willful and intentional on the part of the defendant. Either of the above propositions (and they are all applicable to the case under consideration) justified the county court in reversing the judgment of the justice, The judgment appealed from must therefore be affirmed.

[NIAGARA GENERAL TERM, September 15, 1855. Bowen, Mullett and Greene, Justices.]

GRIFFIN vs. COLVER and others.

In an action for the recovery of the stipulated price for building a steam engine, boilers, &c., the defendants cannot recoup the gains and profits which would have arisen from the use of the engine, &c., had the same been delivered at the time agreed, and which gains and profits the defendants have been prevented from receiving, by the failure of the plaintiff to perform his contract within the time.

In such a case the defendants are entitled to recoup the loss of the value of the use of their machinery, &c., but not the profits of running it, in their ordinary business.

The gains and profits recoverable are those only which are the direct and immediate fruits of the contract, expressly stipulated for, or contemplated, by the parties.

PPEAL, by the defendants, from a judgment entered upon

the report of a referee. The action was brought to recover the value of a steam engine, boilers, &c. sold and delivered by the plaintiff to the defendants, in pursuance of a written agreement between the parties. The complaint averred the full performance of the agreement, by the plaintiff, and the delivery to the defendants of the engine, &c. within the stipulated time, and the failure of the defendants to pay for the same. The answer set up various defenses; among which was this: that the engine and machinery were not completed, nor ready for delivery, within the time agreed; whereby the defendants, for the space of one month and a half, lost the use of the boilers, engine and machinery mentioned in the agreement, and also lost the use of their two planing machines, five saws and other machinery in their mill and lumber yard in Oswego, which said planing machines, saws and other machinery said engine was intended to drive, and of which the plaintiff had notice, at the time of making the agreement.

The cause was tried before a referee, who found the following facts: That in the spring of 1851, the plaintiff sold and delivered, and set running, to and for the defendants, a steam engine, boilers and other machinery, for the price of $3000, as alleged in the first cause of action in the plaintiff's complaint, and that the defendants were indebted to him therefor, except as thereinafter stated. That the defendants paid the plaintiff in notes,

Griffin v. Colver.

money, goods, &c., and in money paid for plaintiff, in all the sum of $2081.27. That the plaintiff failed to deliver the said engine, boilers and other machinery, all by the first day of March, 1852, by reason of which the defendants sustained damages to the amount of $66.12. And he found, as a matter of law, that the defendants were entitled to be allowed to them in this cause the two sums last above mentioned, amounting to the sum of $2147.39. And that the defendants were indebted to the plaintiff for such engine, boilers and machinery, over and above all discounts, set-offs, recoupments and counter-claims, in a balance (including interest) of $918.65; for which sum, with costs, judgment was entered.

The principal question discussed on the hearing before the referee was, what was the correct rule of damages for not delivering the engine within the time specified in the contract. Several witnesses on the part of the defendants testified that the net average value of the use of the machine, at the place where it was located for the purpose for which it was intended, and had been used in connection with the machinery it then drove, was $50 per day, above the wear and tear and the expense of running it, so that in sixty days the use would pay the price which the defendants were to give for the machine, $3000. Upon cross-examination, these witnesses were inquired of how they made their estimation. They stated the quantity of lumber the machines driven by this engine would plane and cut per day, the price the defendants charged for planing, and deducted the expense of running and the wear and tear. The referee held that this was clearly an estimate of the profits, and nothing else, which was inadmissible as a rule of damages, in such cases.

Talcott & Churchill, for the appellants.

A. & D. Coats, for the respondent.

By the Court, HUBBARD, J. I think, upon well settled authority, the defendants are not entitled to recoup the loss of the gains and profits which they anticipated to realize, by the

Griffin v. Colver.

use of their machinery. They were, doubtless, upon the finding of the referee and the principle of his decision, entitled to recoup the loss of the value of the use of their machinery, &c., but not the profits of running it in their ordinary business.

It is perhaps difficult to state the precise measure of damages to which they were entitled, growing out of the breach of the plaintiff's covenant. The referee allowed interest on the value of the defendants' investment in machinery, &c. while it remained unoccupied. This may not give a full indemnity in this respect, nor perhaps could ample compensation be made, short of going into speculative profits in the general business of the defendants, which the law will not allow, because of its great uncertainty, depending upon so many contingencies, and the success, it may be, of entirely collateral enterprises.

In a case like this, ordinarily, interest, together with damages for the delay of workmen, incidental expenses, &c. would present as safe and remunerative a rule, as could well be adopted. Another criterion might be adopted, which I think would be equally safe and entirely just. It is, in respect to the defendants' mill, machinery, &c., to allow the value of the rent or use and occupation for the time, unoccupied. But no evidence was given by which to determine the value of the rent, and hence the referee could not adopt that measure of damages. The rule which he did adopt was, however, sound, and the only one which could have been adopted upon the evidence.

The general rule of damages applicable to executory contracts, for breaches, is well stated in the case of Freeman v. Clute, (3 Barb. 424.) "It is a general rule that the party complaining of a breach of an executory contract is entitled to indemnity for the loss which the non-performance of the obligation by the other party has occasioned, and of the gain of which it has deprived him. But the gain contemplated by this rule is only that which is the direct and immediate fruit of the contract." In that case the defendant agreed to make and prepare for the plaintiff a steam engine of ten horse-power, with a suitable boiler. There was a delay of three months, beyond the time stipulated, in putting them up. They were found to be

Griffin v. Colver.

The learned

defective, and further delay was occasioned. justice, in deciding the case, says: "I cannot agree with the counsel for the plaintiff that the estimated profits upon the manufacture of a specific quantity of flax seed into linseed oil, constitutes a legitimate item of damages against the defendants. Such profits are entirely too speculative and uncertain to make them a measure of damages." That case in its facts is quite analogous to the one at bar. The engine was intended to propel the plaintiff's machinery in his oil mill. Damages were allowed for the use of the mill and machinery, fuel consumed, delay of workmen, and interest on the amount expended in purchasing stock for the mill. Upon what principle the value of the use of the mill and machinery was ascertained does not appear, but probably it was estimated by computing interest on the investment, by way of rent. The case, however, decides this point, that the anticipated gains and profits from the use of the engine in the plaintiff's oil mill in his general business were not allowable. The measure of damages for the breach of an executory contract, which Pothier states as the rule of the civil law, has been adopted, and may be regarded as the settled law of this state. He says: "In general the parties are deemed to have contemplated only the damages, and interest, which the creditor might suffer from the non-performance of the obligation in respect to the particular thing which is the object of it, and not such as may have been incidentally occasioned thereby, in respect to his other affairs; the debtor is therefore not answerable for them, but only for such as are suffered with respect to the thing which is the obligation." (1 Evans' Poth. 91.) This rule is cited with approbation in Masterton v. The Mayor &c. of Brooklyn, (7 Hill, 61.) The gains and profits recoverable are those only which are the direct and immediate fruits of the contract, expressly stipulated for, or contemplated by the parties. The contract in Masterton v. The Mayor &c., was for the delivery of marble hewn in a certain manner, so as to be fitted for use in building. The defendants refused to receive all the marble stipulated for, and the action was brought to recover damages upon the contract, for a breach of covenant. The