Billmeyer, Dill & Co. v. Wagner

Mr. Justice Sterrett delivered the opinion of the court, The contract between the parties was broken by the plaintiff below, in at least two particulars. Instead of consigning the lumber according to agreement, to the Phillipsburg Manufacturing Co., Hoboken, New Jersey, his agent, by mistake, sent it to the Jersey City Car Shops, in consequence of which it was delayed, and increased freight charges were incurred. He also agreed to to notify defendants when the lumber was loaded on cars, ready to move, so that they might promptly advise the Phillipsburg Manufacturing Company of the shipment. In this, also, a mistake occurred in notifying them two or. three days before the lumber was actually loaded. These breaches of agreement, on the part of the plaintiff below, resulted in several days’ delay in the receipt of of the lumber by the consignees, and consequent disappointment and outlay for which they demanded compensation in damages from defendants below, with whom they had contracted for the delivery of the lumber. The defendants in turn claimed to set-off against the plaintiff’s bill the damages to which they had thus been subjected, as they alleged, by plaintiff’s default. One of the items of set-off was the excess of freight incurred by the misconsignment. This the consignees were compelled to pay in addition to what would have been required if the lumber had been properly consigned, and hence they were entitled to be reimbursed by the defendants below. It was conceded to be a proper matter of set-off, and was accordingly allowed. Another demand made by the manufacturing company on defendants, and by them claimed as a set-off against plaintiff’s bill, was for detention of a barge at Hoboken, awaiting the arrival of the lumber, and wages paid their foreman, during the time he remained idle for want of the lumber. Testimony tending to prove these allegations was offered and excluded by the court, and the jury were instructed to disregard these items of set-off, on the ground that they were too remote and not reasonably within the contemplation of the parties at the time they entered into the contract. Damages for which compensation may be justly claimed and allowed are such only as naturally and ordinarily flow from the breach of contract complained of. They should be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, or such as might according to the.ordinary course of things be expected to follow its violation — 95 — Sedgwick on Damages 78-9 ; Hadley v. Baxendale, 9 Exch. 341; Griffen v. Colver, 16 N. Y. 489. If the plaintiff had been informed that the delay of a few days in the receipt of the lumber by the consignees would be likely to involve the defendants in damages of such a special nature as those claimed, exceeding, as alleged in this case, the value of the lumber furnished by the plaintiff, or if he might reasonably have supposed that such would be the probable consequences, there would be some reason and justice in holding him chargeable therewith. But there is nothing to show that the plaintiff had such information as to the plans and purposes of the consignees as would lead him to contemplate such consequences as are alleged to have resulted from the detention of the lumber. It is difficult to see how it could have entered into the contemplation of the parties that the manufacturing company’s barge would be delayed at Hoboken, without being used or required for any other purpose, or that the foreman would be unemployed for want of lumber, and yet be entitled to demand full wages. The business of manufacturing companies is not ordinarily so conducted that such consequences would be at all likely ■to result from a brief delay in the consignment of stock or materials. They may well be considered too remote and exceptional. The general rule is, that on failure to deliver according to contract, the vendee has a right to supply himself in the market, and the measure of damages will be the difference between the necessary cost of the article and the contract price. In view of the circumstances disclosed by the testimony, we cannot say that any error was committed by the court, either in rejecting the testimony complained of or in charging the jury not to allow damages for detention of the barge or for wages of the foreman. The jury were instructed to take into consideration, the loss, trouble and expense to which defendants were subjected by reason of plaintiff’s default, and make a fair allowance for the same, together with the excess of freight which they were required to pay to the Phillipsburg Manufacturing Company. This was all they were fairly entitled to claim. Judgment affirmed.