Converse v. Burrows

• Decision Date: 01 January 1858
• Citation: 2 Minn. 229
• Parties: ISRAEL S. CONVERSE vs. BURROWS & PRETTYMAN.
• Court: Minnesota Supreme Court

Page 229

2 Minn. 229

ISRAEL S. CONVERSE vs. BURROWS & PRETTYMAN.

Supreme Court of Minnesota.

Appeal from order of district court, Nicolett county.

The plaintiff obtained a verdict, and the court below made an order granting a new trial, from which order this appeal was taken.

Points and authorities for appellant: —

1. The complaint alleges distinctly the contract of the defendants to furnish the plaintiff with 190 barrels of pork, of certain quality and description, packed and cured in a certain manner, and in barrels of a certain description; the delivery of the pork under the contract, and that it did not answer the requirements of the contract, but was essentially damaged and defective. Did the complaint contain no further allegation, the rule of damages contended for by defendants' counsel, i. e. the difference between the value of the article contracted for, and that of the article delivered, at the place of delivery, would doubtless be the true one. But it is further alleged in the complaint, that the pork was purchased by the plaintiff for supplies to Fort Ridgley in Minnesota, and that the defendants well knew of this fact at the time the contract was made. This changes the rule of the damages, and renders the defendants liable to the plaintiff for the difference in value at Fort Ridgley, between the article contracted for, and the article delivered. Bridge v. Waine, 1 Stark. 504; Cary v. Gruman, 4 Hill, 625; Hargous v. Ablon, 5 Hill, 472; Sedg. on Dam. 294; Brown v. Edgington, 2 Man. & G. 279; Bluett v. Osborne, 1 Stark. 384; 2 Par. on Con. 456, 486, 487; Bracket v. M'Nair, 14 Johns. 169; Ch. on Con. 869; 1 Par. on Con. 470, 474.

Points and authorities for respondents: —

1. From the paper books in this case, folio 134, it appears that the order granting a new trial in this action, (from which order this appeal was taken,) was made on the 7th day of February, A. D. 1856, at which time there was no right or authority in either of these parties to appeal from such order, and that, therefore, this court has no jurisdiction in this appeal. Sess. Laws Minn. 1856, 12, 13, § 11; Minn. Stat. 1851, 414, § 11.

2. The law allowing an appeal from an order granting or refusing a new trial, having been passed and enacted subsequent to the time when the order appealed from in this action was made, and not being expressly made retrospective or retroactive, cannot operate retrospectively or retroactively upon said order so as to give this court jurisdiction in the appeal. Smith's Com. §§ 149, 161, 172, 368-9, 370, 759; 7 Johns. 477; 8 Wend. 661; 1 Hill, 324, 334; 11 Paige, 400; 1 N. Y. 129; Slack v. Maysville and Lex. R. R. Co. 13 B. Mon.; Johnson v. Koockogey, 23 Ga. 183; Gilman v. Cutts, 3 Fos. (N. H.) 382; Kennett's Petition, 4 Fos. (N. H,) 139; Willard v. Harvey, id. 344; Adams v. Hackett, 7 Fos. (N. H.) 289.

If this court has jurisdiction in the appeal, then we submit as further points: —

3. The general rule of damages where a party has purchased a worthless article is, the difference between the value of the article contracted for, and the real value of the article received at the time and place of such sale, for such difference compensates the party and makes him whole. 3 Denio, 409; 21 Wend. 342; 2 Hill, 291; Sedg. on Dam. 291. But such rule only applies where the damages actually and necessarily ensue from or flow out of the wrong or injury complained of. 2 Par. on Con. 452-3; 2 Greenf. Ev. § 254.

4. The jury in this action have rendered a verdict for special damages, or such as are the natural consequences of the act complained of, although they do not necessarily result from it; and in actions to recover damages for the breach of a contract, if the damages do not necessarily arise from the breach complained of so as to be implied by law, the plaintiff must specify, in his declaration, the particular damage which he has sustained, or he will not be permitted to give evidence of it. Bogert v. Burkhalter, 2 Barb. S. C. 525; Vanderslice v. Newton, 4 N. Y. 133; Strang v. Whitehead, 12 Wend. 64; Slack v. Brown, 13 Wend. 390; 1 Ch. Pl. 396; Squier v. Gould, 14 Wend. 159; 2 Par. on Con. 452, 453, "K;" 2 Greenf. Ev. § 254; Cow. Treat. (4th Ed.) §§ 977, 979.

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H. R. Bigelow, for appellant.

Babcock & Cotton, for respondents.

ATWATER, J.

The complaint in this action sets forth a contract on the part of the defendants to furnish the plaintiff 190 barrels of pork, to be of the quality and put up in the manner specified in the contract, and to be delivered to the plaintiff on board steamboat at Davenport, Iowa.

It is alleged that the pork was to be furnished to the plaintiff for supplies at Fort Ridgley, Minnesota, to fill a contract there made by the plaintiff, of which fact the defendants had notice. The complaint alleges breaches in the contract on the part of the defendants, claiming damages therefor. The answer admits the contract substantially as set forth, and denies the breaches alleged in the complaint. The plaintiff replied, and the issue was tried by a jury at the October term of the district court for Nicolett county, 1855, which was held by the Hon. A. G. Chatfield. A verdict was rendered for the plaintiff, the jury assessing his damages at $3,702.40.

Various exceptions were taken on the trial to the admission of evidence, and the instructions of the court to the jury; but it is deemed unnecessary to notice any save the instructions of the learned judge, before whom the cause was tried, to the jury on the question of damages, as that was the only point insisted upon in the argument before this court. The charge to the jury on this point, as appears by the record, was as follows, viz.: "Where a contract was made by one to furnish to another a specified article of a particular description, to be used for a particular purpose, at another place, and the destination, purpose, and use, is known to him who agrees to furnish the article, and the article furnished is defective for the purpose and not according to the contract, the damage occasioned by reason of such defects applied to such purpose at the place of its use are direct and recoverable, and the damage in such case is the difference between the value of the article received, and that of the article contracted for, at the place of its use." To this ruling the counsel for the defendants excepted, and moved for a new trial on this, among other grounds of error, before the same judge who tried the cause. His Honor granted the motion for a new trial, upon the ground solely, that the instruction above quoted was incorrect, and that he should have instructed the jury that the correct rule of damages in this case, would be the sum the plaintiff had lost by the breach of warranty on the part of the defendants, at the place where the pork was destined to be used.

Upon a careful consideration of this case, we are constrained to hold that the court was correct in its instruction to the jury, and erred in its ruling on the motion for a new trial. Had there been nothing said between the parties to this contract as to the place where the pork contracted for was to be used, there seems to be no dispute but that the correct rule of damages would have been the difference between the value of the article contracted for, and that of the article received, at the place of delivery. But the case at bar forms an exception to this general rule. The plaintiff designed this pork for a particular place and purpose, of which fact he notified the defendants at the time of the contract. The defendants, therefore, entered into the contract in view of these facts, and incurred the obligations imposed by the law in such cases. What were these obligations? In our view, to pay the difference between the value of the pork as such value was actually found in its damaged state at Fort Ridgley, and the market value of the quality of pork contracted for at the same place.

The correct rule of damages in this case must be determined from the language adopted in the complaint (which purports to state the substance of the contract) in reference to the place of destination, and use of the pork. The only clause in the complaint referring to this point reads as follows, viz.: "The said plaintiff further shows to the court that the said pork was to be furnished to plaintiff for supplies for Fort Ridgley, in the territory of Minnesota, which plaintiff had contracted to supply, which fact was well known to the said defendants." Now, had the complaint simply stated that the pork was destined for use at Fort Ridgley, or for the market at Fort Ridgley, and that the defendants had notice thereof, we presume there would have been little question but that the instruction of the court to the jury would have been correct. The case would have fallen within the rule laid down in Bridge v. Wain, 1 Stark. 504, a case which seems to be quoted with approbation in Cary v. Gruman, 4 Hill, 625, as well as in Hargous v. Ablon, 5 Hill, 472.

The general rule of damages on a breach of warranty on a sale of personal property, as above stated, is the difference between the value of the article sold in its defective condition and the market value of the article at the place where it was to be used in the condition represented by the vendor. The reason of this rule does not seem to be based upon the fact that such measure of damages would always restore the vendee to what he had lost by the breach of warranty, for in many cases this would not be true; but rather upon grounds of public policy, it being manifestly more for the public interest that some rule should be established in such cases, rather than leave each individual case to be governed by its own particular circumstances. Hence parties entering into contracts of this kind are aware of their rights and liabilities under a breach of contract by...