Cuddy v. Major

Manning J.: This case comes within the decision of this Court in Clark v. Moore, 3 Mich. 55, where the Court say, in regard to the recovery of special damages for the breach of a contract of sale for the delivery of goods, that “to create such extraordinary liability, there must, in every case, be something in the terms of the contract, read in the light of surrounding circumstances, which shows an intention on the part of the vendor to assume an enlarged engagement, a wider responsibility than is assumed by the vendor in ordinary contracts for the sale and delivery of merchandise.’’ The evidence shows that the cars by which the vendees intended to send the hogs to New York, had not been hired of the railroad company when the contract was made for the hogs, so that there is not the shadow of a pretext for saying the parties could have had in contemplation damages the vendees might sustain by reason of not having the hogs agreed to be sold to complete the loading of such cars. We see nothing objectionable in the charge of the Court. The charge was well enough. The error on the part of the Court consisted in admitting the evidence on which the jury acted in assessing damages, after it had been objected to by defendants. On this ground the judgment must be reversed. The verdict is so clearly contrary to both the charge and the evidence, that the Court should have set it aside and granted a new trial. But we have nothing to do with that. The motion for a new trial forms no part of the bill of exceptions, strictly speaking, and error can not therefore be assigned upon it. The jury assessed the damages at [371] $89. All they should have assessed them at was the $10 paid on the making- of the contract, with interest, as hogs were worth no more in the market on the day they were to he delivered than the price agreed to he. paid by the contract. Judgment reversed, with costs, and new trial ordered. The other Justices concurred.