Opinion
Argued November 15th, 1871
Decided November 20th, 1871
A.P. Lanning, for appellant.
Farnell Brazee, for respondent.
The contract of the defendant, as found by the jury, was to transport the apples from Lockport to New York, and deliver them to the plaintiff there, free from any injury from frost. This contract was broken by the defendant. The apples were never delivered at New York, but frozen and rendered worthless upon the boat in which they were being carried, near Fort Plain, and which was there stopped by the freezing of the canal. The damage sustained by the plaintiff from the failure to perform this contract, was clearly the value of the apples in New York at the time they should have been delivered, pursuant to the contract, in the condition the defendant undertook to deliver them, less the price to be paid for the service. That was the benefit the plaintiff would have derived from the performance of the contract. Nothing less will indemnify him for the loss sustained. The contract was entire to transport the apples free from any injury from frost. Permitting their destruction by freezing was a violation of this contract by the defendant, and the plaintiff is entitled to recover all the damages sustained, by the failure to deliver them in New York according to the contract. The authorities cited by the counsel for the appellant, determining the measure of damages in insurance cases, have no application to the present case. The letter written by Crane at New York, and sent to and received by the defendant, was competent evidence. Crane was the agent of the plaintiff in respect to the shipment of the apples. He made the contract with the defendant for the shipment. The letter stated the contract as he claimed it. And this statement, with the answer of the defendant, if any, was equally competent as if made by him orally to the defendant, together with the reply of the defendant, if any. It was for the jury to determine what weight, if any, should be given to the evidence. It is insisted by the counsel for defendant, that evidence of conversations had by the plaintiff and Crane with Wakeman, was improperly received. Wakeman was book-keeper for defendant, and acted as his agent in many respects in relation to the shipment of freight. This did not make his declarations or conversations with others, disconnected with business transacted by him for the defendant at the time, competent evidence against the defendant. If this rule was violated to the prejudice of the defendant, the judgment must be reversed. Crane testified that he and the plaintiff went to the defendant's office. The defendant was not there, but Wakeman was. That the plaintiff had a conversation with Wakeman, in which Sturgess said he was opposed to shipping by canal, preferred to ship by rail. The counsel for the defendant objected to any evidence of the conversation between the plaintiff and Wakeman, defendant not being present, which was overruled and exception taken. No material evidence was given at this point, under this ruling. Subsequently the same witness testified to another meeting of the plaintiff and Wakeman the next day, at which Wakeman handed the plaintiff a bill of lading for the apples, which the plaintiff refused to receive. The reasons assigned by the plaintiff for this refusal, explanatory of the act, were competent, as part of the res gestæ transacted between the plaintiff and Wakeman, as agent for the defendant. Some further testimony was given as to what Wakeman said about his understanding of the contract, which had been made between the defendant, personally, and Crane, as agent for the plaintiff, which was incompetent, but no objection was made to such testimony. The counsel now insists, that the objection made to the testimony as to the conversation on the day previous, should be held applicable to this testimony. But that objection and the ruling thereon, does not show that the court held all conversations with Wakeman competent. My understanding of it is, that the court only intended to hold such conversations competent, when relating to business being transacted by Wakeman for the defendant at the time. So understood, the ruling was correct. If the ruling was really intended otherwise, the objections should have been more specific. Error must not be presumed but plainly made to appear, to warrant the reversal of a judgment. The judgment appealed from must be affirmed, with costs.
All concur.
Judgment affirmed.