Peyser v. Lund

Willard Bartlett, J.: The plaintiff was engaged in trucking for a firm of dealers in clothing. The defendant was the keeper of a boarding stable. The parties entered into a contract whereby the defendant undertook to board plaintiff’s horses and to provide storage at night in his stable for the plaintiff’s trucks at twenty dollars a month for each horse and truck and three dollars a month for the storage of such trucks as were without horses. At the time of entering into this agreement the defendant said that he would be responsible for all the plaintiff’s goods that went into his stable on the trucks. " The plaintiff, alleged that the defendant broke the contract by refusing to receive into the stable one of his loaded trucks when driven there one evening by his servants. Thereupon the driver left the truck with its load for some hours unguarded in the street, and during this period a- case of clothing was stolen from it. In the present action the plaintiff sought to charge the defendant with the value of the goods thus lost as damages occasioned by his breach of contract. The defendant sought to justify his refusal to admit the truck into his stable upon the ground that there had been a prior modification of the original contract so that he was no longer obligated to receive a loaded truck such as this was for storage at night. [197] The plaintiff, on the other hand, insists that there was no such modification, and I think that the testimony fully warranted a finding in his favor upon this question and that it should be assumed in determining the present appeal that the defendant by excluding the plaintiff’s loaded truck from which the case of goods was stolen broke his contract with the plaintiff and is liable for such damages as naturally and directly flowed from such breach. It seems to me quite clear, however,' that the loss of the goods by theft cannot properly be considered an item of damage for which the defendant is responsible. The damages recoverable upon the breach of a contract are such only as follow naturally and directly from the violation of the agreement and do not include those which could have been prevented by the exercise of reasonable care by the injured party. “If such damages are enhanced by his negligence or willfulness, the increased loss justly falls on him.” (Milton v. Hudson 'River Steamboat Co., 37 N. Y. 210, 215.) “ The law, for wise reasons,” said Selden, J., in Hamilton v. MePherson (28 N. Y. 72, 76), “imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible.” In the case at bar the plaintiff’s driver, being excluded from the defendant’s stable, could properly have taken Lis truck elsewhere to obtain the necessary safety and shelter, and the defendant would have been legally chargeable with the reasonable expense incurred by the plaintiff for this purpose ; or if no similar accommodations were obtainable, the defendant might probably be chargeable- as damages with the cost of providing a watchman for the truck during the night. But the plaintiff, although justly aggrieved by the defendant’s breach of contract in refusing to receive his property as bailee, could not leave it at night unprotected in the public streets and hold the defendant responsible for its loss by theft. It is evident that very ordinary care on the part of the plaintiff’s servants in charge of the truck would have averted this loss; and the law does not permit the consequences of their failure to exercise such care to fall upon the defendant. It follows that the judgment, which is based chiefly on this item of damage, cannot be allowed to stand. It should also be noted that there Avas no competent proof of the [198] value of the stolen case of goods, even if that were a proper measure of damages. The contents are stated to have been pants belonging to a-firm to whom the plaintiff paid $106 on account of the loss. But this payment was no proof of the actual value, and the case contains no other evidence -on the subject. The judgment should he reversed and new trial ordered, costs to abide the event. Goodrich, P. J., Woodward, Jenks and Hooker, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.