Travis v. Duffau

Roberts, J. The error assigned is, that the Court dismissed appellant’s petition, as not containing a cause of action. The alleged injury complained of is the breach of a promise made by Duffau to Hamilton, agent of Travis, to discontinue a suit brought by Duffau against Travis on a draft for sixty-three t4o%- dollars. The damage complained of, is the loss of a tract of land of 1107 acres, worth five dollars per acre, situated in Wharton county, which was sold by the Sheriff of Wharton county, as the property of Travis, by virtue of an execution, issued upon the judgment rendered on said draft;—the land having been sold for the sum of one hundred and fifty dollars only. The first question is, Was the breach of promise under the attendant circumstances an injury recognized by law ? The petition does not state that there was any new consideration given, for the promise, which was broken. It was the original understanding that Hamilton was to accept and pay the draft as agent of Travis, when he should have funds in hand, sufficient to do so. Hamilton’s subsequent undertaking thus to accept, did not confer any additional benefit upon Duffau, nor any increased security for his debt. The breach of what is a nudum pactum cannot inflict an injury capable of legal redress, because it is not a violation of a legal right. (See Sedgwick, 31.) Again, the petition does not state what character of funds he had in the hands of Hamilton, or when they would be made available to meet this demand of Duffau, so as to show the propriety of a further reliance on them to collect the debt. It does not appear from the petition, that Hamilton has means in hand, even up to this time, to satisfy the debt. The debt was due when the draft was made, and the verbal arrangement made for Travis’ agent to pay it, was doubtless for his indulgence and accommodation, and the petition does not present facts which put Duffau wholly in the wrong in not continuing to give the indulgence, and to rely upon the verbal arrangement for his money. The discontinuance of a favour gives no cause of action. (Sedgwick on Dam. 31.) [57] The second question is, Is the damage complained of sufficiently proximate to the alleged injury in the breach of promise? (See Sedgwick, 66.) It has been laid down by good authority, as the result of the cases, that when the contract is to do or refrain from doing a particular thing, the party in default shall be held liable for all losses that may fairly be considered as having been in the contemplation of the parties at the time the agreement was entered into. (Sedgwick, 112.) It could hardly be supposed that the parties contemplated the alleged loss of 1107 acres of land in Wharton county, when arranging for the payment of this debt amounting to sixty-three t4t°? dollars, or when contracting in relation to a discontinuance of the suit thereon. No case in point has been cited in favour of appellant, and it is not believed any such can be found. Mr. Sedgwick, in his work on the measure of damages.Recites a case from New York,- VtJL,: 3.—ti-iA -J-t'u.LLiU V¿~ -v— O which is more directly relevant, in principle, than any that has been found. “ The plaintiff sued the defendant on a contract by which defendant, in consideration of five dollars, paid him, agreed to take a note executed by plaintiff and a surety payable the first of May, and to forbear the prosecution of the note five months; and it was alleged that defendant did not forbear, but sued on the note, by which plaintiff lost $500. The plaintiff offered to prove, to enhance the damages, that when he was sued he was engaged in his harvest, and that for the purpose of raising money to satisfy the demand, he was obliged to quit his work, and thresh his grain, and that he was put to great trouble in raising the money. Woodworth, J., said: 6 It appears to me that this could not form a ground of damages, although the plaintiff might have suffered inconvenience and loss, by the failure to fulfil the contract. Such remote consequences cannot be taken into consideration in estimating the damages.’ ” Here was contract of forbearance founded on a consideration and a serious loss resulting, though too remotely, from the breach. Another consideration presents itself in this case of no little weight, which arises out of the question, Can this- loss of so large a tract of land be properly attributed, even remotely, to Duffau ? The petition does not state that he required the Sheriff of Wharton county to levy on this land at all. Had the Sheriff [58] levied upon just enough of the land to pay the debt, the loss, if any, resulting to Travis, must have been small. The petition states no facts which would render Duffau responsible for this apparently excessive levy. It is this excess which constitutes the great loss of Travis, according to the statements of his petition. “ In a case in which the defendant had slandered the plaintiff, who was employed by one J. 0. for a year, at certain wages, and plaintiff claimed special damages (in the suit for slander) for his discharge by J. 0. in consequence of the slander, before the expiration of the year, it was held by Lord Ellenborough that the discharge of plaintiff by J. 0. was a mere wrongful act, and not the legal and natural consequence of the slander complained of.” (Sedg. on Dam. 66.) So it may with equal propriety be said, that the alleged wrongful act of the Sheriff was not the legal or natural consequence of the persistence of Duffau in his suit, contrary to his agreement as alleged. There is no effort, in this case, to attack the judgment, or set aside the sale, or recover any other damage than that arising from the loss of the land. We are of opinion that the Court did not err in dismissing the petition; and therefore the judgment below is affirmed. Judgment affirmed.