Reading v. Donovan

The judgment of the court (Presión, J., not sitting in the cause, having been consulted as counsel) was pronounced by Eustis, C. J. This appeal is taken by the defendant from a judgment of the Court of the Third District of New Orleans rendered against him for the sum of four thousand one hundred and sixty-six dollars fifty cents, being the amount of damages sustained by the plaintiffs for a breach of a contract on the part of the defendant. The plaintiffs are the proprietor’s of a cotton press, and the defendant is a drayman; and the contract was, that the defendant, for the period of one year from the 1st September, 1848, should haul all the cotton landed in New Orleans, consigned to any of the plaintiffs’ customers, to their press warehouses, for the sum of six cents per bale. The defendant broke his contract, and the plaintiffs hauled the cotton themselves at an expense of fifteen cents per bale. The district judge allowed them the difference between the two sums on 44,500 bales, making the aggregate of four thousand and five dollars, and some small items, which form the amount of the judgment. The plaintiffs in their answer have prayed an amendment of the judgment in their favor. They allege that under the evidence they are entitled to recover from the defendant the sum of seven thousand five hundred dollars, and ask for an amendment of the judgment accordingly. The principal ground for increasing the amount of the damages allowed by the district judge is, that the defendant, by his breach of the contract, deprived them of the-profits they would have made on a large quantity of cotton by pressing it. This, it is alleged, was by the neglect and fault of the defendant diverted from the plaintiffs’ press; and they claim the profit of forty cents per bale lost to them thereby. The district judge did not consider that this claim for the loss of profits rested on grounds sufficiently certain to warrant a judgment, and disallowed it. The proposition put by the counsel for the plaintiffs is, that if the defendant undertook to transport on his drays the cotton for the plaintiffs, knowing the profit to be realized on the pressing, and failed to transport it without any good excuse, he thus deprived them of the profits which they would have made, had the cotton been transported in time; and this damage is the direct consequence of the defendant’s default, and is such as must have entered into the contemplation of the parties at the time of the contract, for which he, the defendant, is in law responsible. We understand the Code, art. 1928, in laying down the rules upon which damages are to be assessed on a breach of contract, merely undertakes to secure a full indemnity to the aggrieved party, and does not authorize a speculation upon the default of the other contracting party. On the default of Donovan to perform his contract, the plaintiffs were authorized to cause it to be performed at his expense. They could have incurred any expense in the furtherance of the contract, and Donovan would have been obliged to reimburse them. Let us suppose a drayman to contract with an importing house to transport to their warehouses the cargoes consigned to them: a cargo of wines arrives, the drayman refuses or delays to transport it, it could hardly be maintained that the drayman would be liable to the importer for any loss of profit on the wine, accruing between his default and the time when the importer chose to take his wine from the vessel to his warehouse. The case of a retailer buying a cask of liquor, and making a bargain with a drayman to transport it to his shop, which the latter refused to perform, presents a still [494] stronger case. The carrier would be liable for the consequences of his delay, aad his employer would be authorized to have the contract performed at his expense; but as to any contingencies resulting from the delay of the employer, the drayman has nothing to do with it. We have always held carriers accountable for damages resulting from unnecessary delay in the performance of their contract, where it was not justified by some sufficient excuse in law. In Rathbone v. Neal, 4 Ann. 563, we held the masters and owners of a vessel liable to a shipper for the loss of a market for his goods, in consequence of unnecessary delay on a voyage from Boston to New Orleans. But it appears to us that where the delay consists in not transporting, in a proper time, merchandize from one part of the city to another, no other indemnity ought to be recovered from the carrier than the cost and expense of performing the contract on his account, and such damage as the default of the carrier occasioned directly to his employer. Even where the inexecution of the contract proceeds from fraud, the damages allowed must be confined to those which are the immediate and direct consequence of the breach. The veiy uncertainty which the district judge recognizes as attending the evidence on which this claim for profits rests, is a necessary consequence of its remoteness from the cause assigned, and is one of the reasons of the limitation which the law wisely imposes on all claims for damages. The judgment of the district court is therefore affirmed, with costs.