41 N.Y. 544, Leonard v. New York, Albany and Buffalo Electro-Magnetic Tel. Co.

Citation41 N.Y. 544
Party NameCHARLES LEONARD and BURR BURTON, Respondents, v. THE NEW YORK, ALBANY AND BUFFALO ELECTRO MAGNETIC TELEGRAPH COMPANY.
Case DateMarch 24, 1870
CourtNew York Court of Appeals

Page 544

41 N.Y. 544

CHARLES LEONARD and BURR BURTON, Respondents,

v.

THE NEW YORK, ALBANY AND BUFFALO ELECTRO MAGNETIC TELEGRAPH COMPANY.

New York Court of Appeal

March 24, 1870

Again argued January 15th, 1870.

Cause submitted in 1868; a re-argument then ordered.

Re argued in 1869, and second re-argument ordered.

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Page 548

COUNSEL

Grosvenor P. Lowrey, for the appellants.

I. AS TO THE RULE OF DAMAGES.

The rule of damages adopted by the referee, is erroneous, so far as it includes any loss by change in market price, or interest, or loss by sale, or any other loss, than the expense of sending the salt to Chicago.

It will be seen that the defendants are willing to pay for the freight on 1,250 casks to Chicago, being, at twenty-seven and a half cents per barrel, $392.85.

The reasons for distinguishing this portion of the damage claimed from the remainder are:

First. Nothing is lawfully recoverable under the facts found, except moneys actually disbursed for freight.

Second. Only so much of those moneys ought to be recovered as could not, by diligence on the part of plaintiff's agent, have been saved.

The second reason will be considered under the point relating to the plaintiff's negligence.

This case is one of those which are continually arising to show that the rule of damages in cases not involving fraud can never be considered settled

Page 549

for all cases. When one party is a fraudulent wrong-doer, and the other the victim, the rule of justice is easy to find, and when found it is the law. But where the question is the distribution of losses or responsibilities between innocent parties, neither of whom has committed intentional fault, and one of whom has had but a temporary and incidental relation to, or charge of the matters out of which the loss arises, the question of law becomes a high question of morals, and demands the best consideration of judges in their capacity of arbiters of right, as well as dispensers of technical law. For to make one bear the loss of another, unless by his willful wrong-doing he has caused and thus incurred the loss, or, by contracting and being paid to bear the loss, he has voluntarily and knowingly assumed it, is spoliation.

Accordingly, it has been the effort of jurisprudence, both in the continental codes and the later judicial determinations of England and America, to find a rule which should do justice between parties thus situated.

It is said in Domat's Civil Law, by Strahan, section 1977: "As we have remarked, in the matter touching the interest of money, the several views by which we may judge if any interest be due or not, so we ought also to discern, in questions which arise about damages, whether any be due or not. And this depends on the quality of the act which may have given rise to the damage; if it is an accident, a slight fault, an imprudence, a crime, an involuntary non-performance of an engagement, or some other cause."

And again, in treating of the duty of the judge in estimating damages, section 1972: "It follows that, as the questions relating to damages arise always from the acts, which vary according to the circumstances, it is by the prudence of the judge that they are to be decided; he, joining to the light which the principles of law and equity may give him, a prudent discernment of the circumstances, and of the regard which ought to be had of them; whether it be by lessening the damages which are to be adjudged, by cutting off pretentions from distant losses, if there be ground for it, as in cases where no bad design nor any fault can be imputed to the person who is to make good the damage."

These extracts sufficiently indicate the effort which is constantly made, under the civil law (by intrusting to the judge large discretion, and requiring him to investigate both the motive of the defendant, and the remoteness or immediateness of the damages suffered), to apportion the loss between the parties, so as not to visit upon the defendant, in gross, all damage which may have happened, but only that which is directly chargeable to his act, or which he has, by his contract, undertaken to bear. (Sedgwick on Damages, page 37.)

And this spirit and policy of law being applied by our more accurate common lawyers to the cases of breach of contract (which is the light in which, for the purposes of the argument, we are now regarding this case) has resulted in various attempts to establish a rule sufficiently broad and flexible to serve the purposes of justice in most cases. The result of long discussions will be found most intelligently and fully stated in Hadley v. Baxendale

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(9 Exchq., 341); Griffin v. Colver (16 N.Y. 494); British Columbia, &c., Co. v. Nettleton (Law Rep. 3, Common Pleas, 399, 408).

From these three cases it is believed that the precise rule of damages for this case may be obtained.

As stated in Griffin v. Colver, the rule is laid down that "the damage recoverable is only such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is, such as might naturally be expected to follow its breach."

In every case that necessary "contemplation" of the damage likely to happen from a breach must be of a character to justify the court in implying a further term of the contract, to pay for the damage when it happens. It may perhaps be called a contractual contemplation or foresight of the damage. Thus, in the case of the British Columbia Co. v. Nettleton, WILLES, J., says: "I am disposed to take the narrow view that one of two contractors ought not to be allowed to obtain an advantage which he has not paid for. The conclusion at which we are invited to arrive would fix upon the ship owner, beyond the value of the thing lost and the freight, the further liability to account to the intended mill owners, in the event of a part of the machinery not arriving at all, or arriving too late, through accident or his default, for the full profits they might have made by the use of the mill, if the trade were successful or without a rival. If that had been presented to the mind of the ship owner at the time of making the contract, as the basis upon which he was contracting, he would at once have rejected it. And, though he knew from the mill owners the use they intended to make of the articles, it could not be contended that the mere fact of knowledge, without more, would be a reason for imposing upon him a greater liability than would otherwise have been cast upon him. To my mind that leads to the inevitable conclusion that the fact of knowledge cannot increase the liability. The knowledge must be brought home to the party, and ought to be charged under such circumstances that he must know that the person he contracts with reasonably believes that he accepts the contract with the special condition attached to it."

This element of contracting with reference to the contemplated damages must, in justice, exist in every case of damages resulting from breach of contract. In cases like Griffin v. Colver, it is more easily implied; but in cases like the one in hand, or like the English case last cited, there is the difficulty, first, of implying as against the mere carrier or telegrapher the requisite knowledge to enable the court to see that he must have foreseen the damage; and second, that having foreseen, or being able to foresee it, he contracted with reference to it.

The application of the rule to this case makes it necessary again to consider what was the contract. Whatever it was is to be ascertained from what took place at Chicago. Nothing took place there except the delivery of the dispatch and payment for its transmission. If the court will dismiss from mind all that has been brought out since then, and regard the dispaten as the sole evidence of a contract, and will stand just where the Western

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Union Company and the plaintiffs did when the business came to their hands, of what does this dispatch inform an intelligent reader? Only that a firm in Chicago directs a man in Oswego to "send 5,000 casks of salt immediately. "There is nothing to indicate whether this is a purchase; or a direction by an owner to his agent; or by an agent desiring to have goods on hand for sale; or desiring goods to meet a contract of sale. In short, there is nothing to indicate that it will make any difference to any person whether the price of salt is high or low when it shall arrive; or that any or what use is to be made of the salt in Chicago; or that it is to be sent to that place even. Such a message might very well be a cypher message, its real purport being entirely unlike its apparent purport. If the telegrapher is bound to draw inferences, it would doubtless be a fair inference that the sending was to be from the place to which the message is sent to that from which it is sent, although that might easily be a mistaken inference. But it is insisted that persons exercising for strangers a special duty so remote from the real business in hand, are not called upon to draw inferences. If the employer of the telegrapher wishes to hold him for damages he ought to inform him of the value of his message, and of the nature and extent of the damages likely to ensue from any error. If he wishes the telegrapher to assume the whole responsibility for whatever in the chapter of accidents may happen, he must himself go the whole length of informing the telegrapher of everything which a prudent man would wish to know when called upon to determine whether for a certain premium he will incur a certain risk. It may be that he will decline the...

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88 practice notes
  • 53 So. 329 (Fla. 1910), Mcmillan v. W.U. Tel. Co.
    • United States
    • Florida Supreme Court of Florida
    • 4 Marzo 1910
    ...and proximate result of its negligence. In other words, as was well said by Chief Justice Earl in Leonard v. New York & C. Tel. Co., 41 N.Y. 544, text 567, 1 Am. Rep. 446, 'a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing......
  • 229 S.W. 817 (Mo.App. 1921), Wilkinson v. Western Union Telegraph Co.
    • United States
    • Missouri Court of Appeals of Missouri
    • 25 Marzo 1921
    ...251, 1 L.R.A. 281; Harkness v. Western Union Telegraph Co., 73 Iowa 190, 34 N.W. 811, 5 Am. St. Rep. 672; Leonard v. Telegraph Company, 41 N.Y. 544, 1 Am. St. Rep. 446; Cashion v. Western Union Telegraph Co., 124 N.C. 459, 32 S.E. 746, 45 L.R.A. 160; Western Union Telegraph Co. v. Morris, 2......
  • 141 F. 538 (8th Cir. 1905), 2,156, Western Union Telegraph Co. v. Schriver
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 16 Noviembre 1905
    ...403, 18 N.E. 251, 1 L.R.A. 281; Harkness v. Western Union Tel. Co., 73 Iowa, 190, 34 N.W. 811, 5 Am.St.Rep. 672; Leonard v. Telegraph Co., 41 N.Y. 544, 1 Am.Rep. 446; Cashion v. Western Tel. Co., 124 N.C. 459, 32 S.E. 746, 45 L.R.A. 160; Western Union Tel. Co. v. Morris, 28 C.C.A. 56, 83 F.......
  • 163 S.W. 920 (Mo.App. 1914), F. W. Brockman Commission Company v. Western Union Telegraph Company
    • United States
    • Missouri Court of Appeals of Missouri
    • 3 Febrero 1914
    ...Tel. Co. v. Mumford, 3 Pickle, 190 (Tenn.), 2 L. R. A. 601 (note); Western Union Tel. Co. v. Carew, 15 Mich. 525; Leonard v. Tel. Co., 41 N.Y. 544; Baldwin v. U. S. Tel. Co., 45 N.Y. 744 Western Union Tel. Co. v. Lovely, 52 S.W. 563 (Tex.); Western Union Tel. Co. v. Sorsby, 29 Tex. Civ. App......
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88 cases
  • 53 So. 329 (Fla. 1910), Mcmillan v. W.U. Tel. Co.
    • United States
    • Florida Supreme Court of Florida
    • 4 Marzo 1910
    ...and proximate result of its negligence. In other words, as was well said by Chief Justice Earl in Leonard v. New York & C. Tel. Co., 41 N.Y. 544, text 567, 1 Am. Rep. 446, 'a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing......
  • 229 S.W. 817 (Mo.App. 1921), Wilkinson v. Western Union Telegraph Co.
    • United States
    • Missouri Court of Appeals of Missouri
    • 25 Marzo 1921
    ...251, 1 L.R.A. 281; Harkness v. Western Union Telegraph Co., 73 Iowa 190, 34 N.W. 811, 5 Am. St. Rep. 672; Leonard v. Telegraph Company, 41 N.Y. 544, 1 Am. St. Rep. 446; Cashion v. Western Union Telegraph Co., 124 N.C. 459, 32 S.E. 746, 45 L.R.A. 160; Western Union Telegraph Co. v. Morris, 2......
  • 141 F. 538 (8th Cir. 1905), 2,156, Western Union Telegraph Co. v. Schriver
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 16 Noviembre 1905
    ...403, 18 N.E. 251, 1 L.R.A. 281; Harkness v. Western Union Tel. Co., 73 Iowa, 190, 34 N.W. 811, 5 Am.St.Rep. 672; Leonard v. Telegraph Co., 41 N.Y. 544, 1 Am.Rep. 446; Cashion v. Western Tel. Co., 124 N.C. 459, 32 S.E. 746, 45 L.R.A. 160; Western Union Tel. Co. v. Morris, 28 C.C.A. 56, 83 F.......
  • 163 S.W. 920 (Mo.App. 1914), F. W. Brockman Commission Company v. Western Union Telegraph Company
    • United States
    • Missouri Court of Appeals of Missouri
    • 3 Febrero 1914
    ...Tel. Co. v. Mumford, 3 Pickle, 190 (Tenn.), 2 L. R. A. 601 (note); Western Union Tel. Co. v. Carew, 15 Mich. 525; Leonard v. Tel. Co., 41 N.Y. 544; Baldwin v. U. S. Tel. Co., 45 N.Y. 744 Western Union Tel. Co. v. Lovely, 52 S.W. 563 (Tex.); Western Union Tel. Co. v. Sorsby, 29 Tex. Civ. App......
  • Request a trial to view additional results