Cannon v. Folsom

IsbelU, J. There is some difficulty in clearly understanding what was intended by the defendant in his demurrer, by “ by special damage,” as well as in the ruling of the court, where the same phrase is used. This may mean the damages specially counted upon by plaintiff; or it may mean those damages claimed after the words, “ the following special damages,” used in the declaration. Erom the whole case, we conclude that the latter was intended by the demurrer and ruling. Assuming this to be the matter demurred to, the following are the damages claimed, which were excluded by the sustaining of the demurrer; viz.: the sum claimed as the price of the lumber, into .which the logs were intended to be sawed, over and above the cost thereof, and the cost of sawing the same; for the mill lying idle, and for the wages of laborers to take care of and preserve the saws, while the mill was idle. The general settled rule of damage, both in England and the United States, for failing to deliver goods at a specified time and place, when the price is not paid or advanced before the time for delivery, is the difference between the contract and the market price at the time the delivery should have been made. The authorities cited by defendant are full on this point, and further reference here is deemed unnecessary. Where the price of the commodity contracted 'to be delivered, has been paid prior to the time for delivery, a somewhat different rule obtains, and it has been repeatedly held, that, in such case, the plaintiff is not confined in his recovery to the difference between the contract and market price on the day of delivery (Clark v. Pinney, 7 Cow. 681; West v. [111] Prichard, 19 Conn. 212; per Marshall, C. J. in Shepherd v. Hampton, 3 Wheat., 200); but he may recoyer the highest market price between, the clay, for delivery and the time suit is brought, provided the plaintiff does not unreasonably delay the institution of his suit. These are well-established rules of law. A party, contracting to deliver goods at a specified time and place, where no express stipulations enter into the contract to vary his liability, may be fairly presumed to have contracted with relation to them. There is nothing in the contract at the foundation of this suit, that tends to show that any other than the ordinary liability was stipulated for. The contract is in writing, and the plaintiff, in his recovery, must be confined to it. ^ It is not competent to snlarge it by parol evidence, or by special pleading. To allow any of the damages excluded by the demurrer, would be to enlarge the contract. It is laid down by Williams, O. J., in delivering the opinion of the court in Bush v. Chapman, 2 G. Greene, 551, that, “ if the plaintiff sue on a written or special contract, so as to make it the basis of his action, it must regulate his right to recover, as well as the amount.” We hold, therefore,, that the demurrer was properly sustained. Judgment affirmed.