Dempsey v. Hertzfield

By the Court. Stephens, J., delivering the opinion. 1. This action is founded on a breach of contract, and not on a tort in any possible legal sense of that term; and we can [868] not see, therefore, any reason to doubt that it survives against the executor. 2. Proof of the purpose for which the house was rented, was properly admitted. That proof did not, as was contended in the argument, add anything to the written contract ; it only went to show the amount of damage properly chargeable against the defendant on account of the breach of the contract as it stands in the writing. His contract was to stop the leak, and the plaintiff, in order to recover damages for the breach of it, had to show, not only that he had sustained injury, but that the injury was such an one that the parties must be presumed, in reasonable contemplation, to have foreseen that it would be a probable consequence of a breach of the contract. The purpose for which the house was to be used, showed what sort of things the parties must have foreseen would be injured by a failure to stop the leak. 3. The main controversy in this case, was as to the measure of damages. It was contended by Mr. Dempsey’s counsel that although he may have failed to stop the leak, yet Hertzfield, the plaintiff below, could recover for only such injury as he could not have prevented by prudence on his own part; and that as he might easily have prevented all the injury by having the leak stopped himself, he ought to recover only the reasonable cost of stopping the leak. Such a rule is not applicable to this case, for there was not disclosed any failure of prudence on the part of Hertzfield. By the contract, the burthen of stopping the leak was on Dempsey, and not on Hertzfield. Mr. Dempsey made an effort to stop it, and pronounced' it stopped. Mr. Hertzfield relied on that announcement and had a right to rely on it till he found the rain pouring on his goods. He then gave.Mr. Dempsey notice that the attempt to stop the leak had proved a failure. Mr. Dempsey made another attempt, and left the roof as all sound and safe. Mr. Hertzfield relied again on the fact, that Mr. Dempsey had done his duty, and he had a right to rely on it, till he again found it otherwise. Thus the process went on, till from many successive failures of Mr. Dempsey’s defective work, the goods in the store were greatly injured, Mr. Hertzfield suffering and having a right to suppose all the while that Mr. Dempsey had done his duty, until the rain demonstrated the contrary. Surely there was no obli [869] gation of Hertzfield to take upon himself the performance of Dempsey’s duty, when Mr. Dempsey was ail the while attempting to perform it for himself, and professing at each attempt, to have succeeded. There was but one fault in the whole affair, and that was a constant resort to patchwork, instead of a thorough renovation of the roof. That fault was Mr. Dempsey’s, and he ought to bear the consequences of it. The other points were abandoned. Judgment affirmed.