Medbury v. New York & Erie Railroad Co.

By the Court, Clerke, J. It may be quite true that a common earner is not liable on an implied contract to deliver goods at any specific time. But, like any other person, [566] he is hound by the terms' of his express undertaking, whether entered into directly by hitnself, or through the intervention of an agent. The only question of which there can be the slightest doubt in this case is, whether Spaulding was authorized to make the contract Upon which this action is founded. The referee has found, unhesitatingly, that he did make it; and it is not our custom to disturb any finding or verdict not clearly against the weight of evidence. As to the authority of Spaulding, he was general freight agent, beyond dispute; and the by-laws entrust him with the power of negotiating contracts and arrangements in relation to the transportation of freight, with the approval of the president. So that, if the approval of the president was given to this contract, there could be no doubt of its validity. But is a contract for the transportation of freight on an extensive rail road, where contracts of every kind in relation to freight must be almost innumerable, to fail, because the agent has neglected to present the contract to the president for his approval, or because the president has neglected, or finds it impracticable, to examine, every engagement made by his subordinates, throughout the whole extent of the road ? Necessity requires, and the protection of all persons transacting business with a concern of this description requires, that this restriction relative to the approval of the president, should be construed as meaning, subject to his approval, if he, on any occasion, deems it proper to interpose, before the attempted execution or performance of the contract. But, if he does not think proper to interpose, and neglects to apprise the public that every special contract for the transportation of freight must be ratified by him, the company must be then held hable for the fulfillment of the contract. When the agent is entrusted with authority within a prescribed sphere of action, and is permitted, from day to day, without any interference on the part of the principal, to exercise the authority, I do not think that third parties should be affected by an understanding between the principal and agent, that every act to receive [567] the express approval of the principal. But it may be fairly doubted whether any such restriction was intended in the by-laws. Taking into consideration the multiplicity and variety of business on this rail road, it may be well supposed, as I have already intimated, that the restriction meant that the contracts of the superintendent should be subject to the approval of the president, whenever he should deem it prudent to interfere.' This view is strengthened by the direction in section 16 of the by-laws, that the chief clerk shall be furnished, by the general freight agent, with popie.s of all special contracts for transportation of freight, If. it was intended that in every instance the contract should receive the express ratification of the president, it is not probable, if in writing, that it would remain in the possession of the agent, but the proper person to transfer it to the chief clerk, would be the president himself, after affixing his consent to it. [New York General Term, February 1, 1858. We consider the exceptions on the other points equally untenable. The referee adopted the correct rule of damages in cases of this nature. Compensation for the actual loss sus-Is tained, is the fundamental principle upon which our law bases the allowance of damages. It will not, indeed, make this allowance upon a calculation of speculative profits; for this would he proceeding upon contingencies, and would involve the subject too much ip uncertainty. It would be too difficult for practical application. Nor will the law indemnify for remote or indirect losses. The loss must be the natural and proximate consequence of the act, and when this can be ascertained without uncertainty, the principle of compensation will be adopted. This was clearly ascertainable in the present case, j The judgment should be affirmed, with costs. Davies, Clerke and Sutherland, Justices.]