Opinion
05-05-1888
WEILAND v. TOWNSEND.
Exceptions to report of commissioner.
I think the report of the commissioner is unexceptional except in a single respect; and the respect in which it is faulty is that he has allowed the lessees more than they are entitled to for the power which they did not get. It is admitted that there is a difference in value between steam-power and water-power in Paterson; steam-power being worth $75 per annum for each horse-power, while water-power is worth $15 less, or $60 per annum for each horse-power. The lessor agreed to furnish a specific quantity of water-power, but has, without fault on his part, been unable to performhis contract fully in this respect. The lessees ask to be compensated for the deficiency. They are entitled to compensation. That is not disputed; but the question in dispute is as to rate. The lessees claim that compensation should be allowed according to the value of steam-power, and the commissioner, in computing the allowance to be made, has adjudged the value of steam-power as the basis of his calculation. This is manifestly erroneous. The thing the lessees bargained for was water-power, not steam-power. The thing they lost was water-power, not steam-power. The deficiency was not supplied; that is, the lessees did not have the deficiency made up by either kind of power. If they had had the deficiency made up, they would have been entitled to be reimbursed for their outlay, even if it had exceeded the cost of steam-power, provided, in bargaining for the additional power, they had acted fairly. No special damage is shown, nor does it appear that, if the lessees are released from paying for the power they did not get, they will not be fully reimbursed. Ordinarily, unless special damage is shown, the value of the thing of which the injured party has been deprived, is the measure of his damages. And in this case it would seem, if the lessees are relieved from paying for what they did not get, at the rate at which they would have been obliged to pay for it if the lessor had been able to perform his contract, that they will get all they are justly entitled to. I regard it as entirely beyond dispute that they are not entitled to be paid for the loss of water-power according to the value of steam-power. If they have suffered a loss beyond the value of the water-power not furnished, such loss is damage in the strict sense of that term; but they cannot be allowed damage until facts showing its extent are before the court. As the case now stands, the value of the water-power not furnished must be accepted as the test by which the amount to be deducted from the rent must be calculated.
I think the trustee should pay the commissioner for his services. An investigation was made necessary in consequence of the inability of the trustee to perform his contract, and he should therefore pay the costs of the investigation, including the compensation to the commissioner. No counsel fees will be allowed. Each party must pay their own counsel.
Let an order be drawn confirming the commissioner's report, except in the particular above stated, and in that particular let the order conform to the view above expressed.