Niagara Falls Paper Co. v. Lee

Full title: NIAGARA FALLS PAPER COMPANY, Respondent, v . GEORGE A. LEE and GERTRUDE E…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jul 1, 1897

20 App. Div. 217 (N.Y. App. Div. 1897)

47 N.Y.S. 1

Opinion

July Term, 1897.

Carlton E. Ladd, for the appellants.

Frank R. Perkins, for the respondent.

WARD, J.:

The defendants upon the trial offered to show in effect that the claim or contract upon which the Champion was libeled was not a valid claim; this the trial court refused to permit, and the defendants urge such refusal here as serious error. This contention cannot prevail. The condition of the indemnity bond was that the plaintiff should be indemnified "against any damage or loss in consequence of any debt or contract, maritime or otherwise."

It is conceded that there was a maritime contract in existence whereby the Champion was to transport a load of corn to Buffalo, and, as a result of the non-performance of that contract, she was libeled and detained. Against such a mischief the indemnity bond was aimed, and it was not necessary that the plaintiff should establish, as upon a litigation between the parties to the contract, the validity of the contract or that it could be enforced. The contract was sufficient to create the cause of detention which created the damage complained of by the plaintiff.

In Trustees of Newburgh v. Galatian (4 Cow. 340) it was held that a bond to save harmless and indemnify against the costs and expenses of a certain act extends to the costs of defending a groundless suit for the act in which the obligee succeeded, and that the rule that a covenant for quiet enjoyment is not broken until a lawful suit and eviction is technical, applying to that particular covenant, and does not extend to a bond of indemnity.

In Home Insurance Company v. Watson ( 59 N.Y. 390-394) an action had been brought upon an indemnity bond which indemnified the insurance company against the claims of a certain person upon certain insurance moneys and from all costs, etc., that should arise therefrom. GROVER, J., said: "It will be seen that the question is, whether the word claims, as used in the bond, was intended to include such only as were valid, and which were in fact enforced by legal proceedings, or was intended to embrace such as were asserted by legal proceedings, causing necessary expenditure in the defence, although ultimately adjudged invalid."

And the learned judge, with his usual clear reasoning, reached the conclusion that the word "claims" was not intended to embrace valid claims only, but to embrace any claims, whether valid or otherwise, that might subject the party indemnified to costs, delay or expense.

The cases cited upon this subject by the learned counsel do not assist us.

The serious question arising upon this appeal relates to the evidence of damages as to the detention of the St. Louis and of the Potomac. The plaintiff's contention upon the trial was that these three vessels had been used together upon the lakes, the two schooners being towed by the St. Louis as its consorts, and that it was in the contemplation of the parties, when the indemnity bond was given, that this condition should continue in regard to these vessels, and that the detention of one vessel would consequently detain the others. The plaintiff gave some proof tending to show that these three vessels had been previously so used upon the lakes. Such damage as resulted to the plaintiff from the delay of the Champion, by the libel proceedings, it can unquestionably recover. Whatever damage there may have been, it was proved in connection with the assumed damage or loss consequent upon the detention of the other vessels, and we cannot say how much of the loss occasioned by the detention of the St. Louis is embraced within the verdict of the jury, and if we conclude, therefore, that the case does not warrant an allowance of damage as to either the St. Louis or the Potomac, a new trial must be directed.

To entitle the plaintiff to damages for the detention of the St. Louis it must be made to appear that the vessel was detained as a direct, necessary and natural result of the detention of the Champion, or at least it must appear from the evidence that that was a proper question to be submitted to the jury.

The foregoing statement of facts shows that the St. Louis was in no manner detained by the libeling of the Champion. It was not at the place it should have been if it were intended that it was to tow either the Champion or the Potomac to Buffalo. The concession of the plaintiff's agent is to the effect that it was not intended to send the St. Louis to Milwaukee for that purpose, and the evidence connecting the detention of the St. Louis with that of the Champion seems to have been a conclusion of the witness not based upon the facts.

It cannot be said that the damages claimed as to the detention of the St. Louis may fairly and reasonably be considered as naturally arising from a breach of the contract of indemnity.

It was said in Griffin v. Colver ( 16 N.Y. 491), by SELDEN, J., that the rule is fundamental which requires that the damages claimed should in all cases be shown by clear and satisfactory evidence to have been actually sustained, and that it was a well-established rule of the common law that the damages to be recovered for a breach of the contract must be shown with certainty, and not left to speculation or conjecture.

The most that can be said with regard to these damages is that they were remote and conjectural. The law does not assume to grant relief for all the possible consequences of the breach of a contract, but confines itself to those direct damages which flow from the breach complained of.

We may cite in support of this rule Burton v. Pinkerton (L.R. [2 Exch.] 340), where the plaintiff made a contract to serve on board an English ship as one of its crew on a voyage from London to Rio Janeiro, and back to a final port of discharge. At Rio the master engaged in an illegal business, and the plaintiff left the ship. While at Rio he was seized by the authorities and imprisoned as a Peruvian deserter. In an action for a breach of the contract the plaintiff was allowed to recover damages for the loss of the wages he might have earned, but was denied damages for the imprisonment.

BRAMWELL, B., in delivering the opinion of the court, says: "It is true that in one sense, the defendant's conduct caused the imprisonment: but for that, no doubt, the plaintiff would not have been imprisoned. That, however, is not enough. * * * According to the ordinary rule damage to be recoverable for the plaintiff must inevitably flow from the tortious acts of the defendant. It must be caused by him as the causa causans, and this imprisonment was not so caused."

In Prosser v. Jones ( 41 Iowa 674) the defendant agreed to give the plaintiff $100 for a threshing machine, and thresh his wheat at any time within four days after notice. This he failed to do, and the plaintiff, whose wheat was unstacked, and who was unable to get another machine to thresh it, brought an action to recover for such injury as it afterwards sustained and the expense of stacking it, but it was held that such damages were too remote to be recovered in an action for the breach of the contract.

Reference may be had also to Fuller v. Curtis ( 100 Ind. 237), and to Osborne Co. v. Poket ( 33 Minn. 10).

It is unnecessary to multiply cases further upon this subject.

There seems to have been no difficulty in procuring a steamer to tow the Potomac from Milwaukeee to Buffalo. It was the duty of the plaintiff, upon discovering that the Champion was detained and the St. Louis being in Buffalo, if it desired to tow the Potomac to Buffalo, to procure a vessel for that purpose and not wait for the discharge of the libel upon the Champion.

The plaintiff gave evidence which is claimed to have excused this delay, viz., the promise of the defendants to remove the cause of the detention of the Champion. As the St. Louis was not there to tow either of these vessels, and as another boat was to be procured for that purpose, there was no object in the Potomac waiting for the Champion, except expense might be saved by towing both of the vessels together. It is hoped that, upon another trial, the obscurity surrounding this situation as to the Potomac will be cleared up so that an intelligible judgment can be based upon it.

It is unnecessary to further comment upon the situation of the Potomac, or as to any claim of damages that may arise as to its detention at this time, as a new trial must be granted for the errors already referred to.

It is a wholesome rule that should be borne in mind in the disposition of these cases, that the law imposes upon a party subjected to injury from a breach of contract by the other party the active duty of making reasonable exertions to render the injury as light as possible. ( Hamilton v. McPherson, 28 N.Y. 72; Milton v. The Hudson River Steamboat Co., 37 id. 210.)

If, therefore, the delay of the Potomac and of the St. Louis was the result of the negligence of the plaintiff, or the result of its failure to provide other means for occupying the St. Louis and the Potomac during the period of the tension claimed, the loss should not fall upon the defendants.

The judgment should be reversed and a new trial granted, with costs to abide event.

All concurred, except FOLLETT, J., not sitting.

Judgment and order reversed and a new trial ordered, with costs to abide the event.