Burrell v. New York & Saginaw Solar Salt Company

• Decision Date: 11 November 1865
• Citation: 14 Mich. 34
• Parties: Harvey D. Burrell v. New York & Saginaw Solar Salt Company
• Court: Michigan Supreme Court

14 Mich. 34

Harvey D. Burrell v. New York & Saginaw Solar Salt Company

Supreme Court of Michigan

November 11, 1865

Heard October 26, 1865; October 27, 1865 [Syllabus Material] [Syllabus Material]

This is a case made, after judgment, in the Saginaw circuit for review by the Supreme Court.

The action was assumpsit brought to recover damages under a contract, by reason of the defendants preventing its fulfillment.

The declaration contained a special count, setting out the written contract and averring in general terms that plaintiff agreed to construct for defendants 2,600 salt vats and covers for the sum of $ 13 each; that defendants agreed to furnish certain materials, etc.; that the parties entered upon the performance of their contract; that defendants failed to furnish and deliver materials as agreed upon, and finally requested plaintiff to abandon said contract.

The declaration also contained the common counts. Defendants pleaded the general issue, with notice of set-off. The cause was tried by the court and judgment rendered in favor of plaintiff for $ 4,516, to which judgment defendants excepted.

The case was settled on motion of defendants, for review by the Supreme Court on the evidence and the law. The facts sufficiently appear in the opinion of the court.

H Joslin and Gage & Glover, for plaintiff:

1. The declaration is sufficiently certain to entitle the plaintiff to prove a breach of the contract, and recover damages therefor; special damages are also sufficiently alleged to entitle the plaintiff to recover such as are proved. The common counts, when sufficient, without special counts: 1 Ch. Pl., 9 Amer. Ed., 399; 2 T. R., 105, 604; 3 East, 80, 85. Plaintiff may recover on common counts when there has been an agreement, if it has been executed or put an end to: Parkins v. Hart, 11 Wheat. 237; Jewell v. Schroeppel, 4 Cowen 564; Cochrane v. Totum, 3 Monroe 405; Keyes v. Stone, 5 Mass. 391.

So that only a duty to pay the money remains: May v. Wakefield, 7 Vt. 228. It is not necessary in such case to declare specially. Such damages as may be presumed necessarily to result from the breach of contract need not be stated with any degree of particularity in the declaration.

The damages sustained are matters of evidence and need not be alleged, nor are they scarcely ever stated but in a general manner: 1 Ch. Pl., 9th Amer. Ed., 235.

The defendants' "objection to the uncertainty of the declaration, and all evidence to show special damages, because no special damage was sufficiently alleged" is without force and lacks point, because not sufficiently specific. The defendants were bound to lay their fingers on those points, which arise in admitting or denying evidence, or matter of law, without which the general objection has no force: Zabriskie v. Smith, 11 N. Y., 480; Dunckle v. Wiles, Ibid., 420.

2. The contract is admitted, and in evidence. It was performed by plaintiff so far as not prevented by defendants. Plaintiff had the means and ability to complete it.

Defendants failed to perform, and ordered plaintiff to quit the work.

The contract itself furnishes the measure of damages: Sedgwick on the Measure of Damages, 3d Ed., 209.

Under this rule the plaintiff claims to recover the contract price, less the cost of performing it, at the time defendants failed to perform and notified plaintiff to quit: Masterton v. Mayor of Brooklyn, 7 Hill 61; Cook v. The Commissioners of Hamilton Co., 6 McLean C. C. R., 112; Griffin v. Colvin, 16 N. Y., 489; Thomson v. Jackson, 14 Monroe 114; Town of Royalton v. R. & W. Turnpike Co., 14 Vt. 311; 13 How. 307.

The damages are to be fixed by this contract at the time defendants failed to perform, and notified plaintiff to quit, in the season of 1864.

Wm. L. Webber, for defendants:

1. The declaration is not drawn so as to entitle the plaintiff to give any evidence of a breach of the contract, nor of special damages. The objection was taken when such evidence was first offered, and all testimony on those subjects taken subject to the objection. We insist that the declaration is defective in substance, and such defects are not aided by pleading: 1 Ch. Pl., 672.

There is no allegation of special damages. Profits are not a necessary and natural result of a contract, nor is damage a necessary result of a breach on the part of the other party, for contractors as often perhaps lose, as make money by their contracts. Even loss of profits, therefore, should have been specially alleged as damages: 1 Ch. Pl., 338.

2. The judge below adopted as a rule of damages the following: "The plaintiff, therefore, can recover , the difference between $ 33,800, which was promised for the completed job, and the sum which in 1864 such completed work would have cost the plaintiff, after deducting from such difference what has been paid."

We submit that this rule is erroneous. If 1864 proved to be a very dry season, and therefore a much better one for making solar covers than a wet season would have been, that fact alone should not influence the amount of damages to which the plaintiff is entitled. It cannot be supposed that the parties contracted with reference to any other than an ordinary season. Only such damages can be allowed as can "fairly be considered as having been within the contemplation of the respective parties at the time of entering into the contract:" Allison v. Chandler, 11 Mich. 553; Griffin v. Colvin, 16 N. Y., 495.

The true rule would be, as we conceive, that plaintiff should recover the difference, if any, between the contract price and what he could have sublet the contract for.

Cooley, J. Christiancy and Campbell, JJ. concurred. Martin, Ch. J., dissenting.

OPINION

Cooley J.:

The plaintiff seeks to recover in this suit the damages which he has sustained by not being allowed to fulfill a contract made with the defendants, under which he was to construct for them twenty-six hundred salt vats and covers on their premises upon Saginaw river. The case comes before us for a review upon the facts, and the only question of law involved in the case is, whether the evidence given by the plaintiff to show damage was properly admitted.

By the contract the defendants were to furnish and deliver on their dock the materials for said vats and covers, as fast as the same should be required by said Burrell, who was to construct at least four hundred vats...