Furstenburg v. Fawsett

• Decision Date: 11 January 1884
• Citation: 61 Md. 184
• Parties: LEVI FURSTENBURG v. ASBURY F. FAWSETT.
• Court: Maryland Court of Appeals

61 Md. 184

LEVI FURSTENBURG v. ASBURY F. FAWSETT.

Court of Appeals of Maryland

January 11, 1884

Appeal from the Superior Court of Baltimore City.

The case is stated in the opinion of the court.

Exception.--At the trial the plaintiff offered two prayers, which are sufficiently set out in the opinion of this court.

The defendant offered five prayers, the first, third and fourth of which are omitted, having been conceded. The second and fifth are as follows:

2. That if the jury shall find, from the evidence, that the defendant did not cut all the wood from such portions of the land as were marked off by the defendant to be cut, then the most which the plaintiff can recover under the evidence in this case, is the difference in value of the wood left on the land, between the rate of seventy-five cents a cord and the present market value of said wood; and if the jury shall find, that what is left on the portion of land which was marked off to be cut, is of equal value or of greater value in the whole than seventy-five cents per cord, then their verdict must be for the defendant.

5. The defendant prays the court to instruct the jury, that, under the evidence in this cause, they cannot, in estimating the damages, take into consideration the question, whether the land from which the plaintiff agreed to cut the wood, by the written contract offered in evidence, was less valuable with the trees which the defendant left standing upon said land and which they may find he ought to have cut, under said contract, than it would be if said trees had all been cut because there is no evidence in the cause showing that said land, in the condition in which it was left by the defendant is less valuable than it would be if all the trees, required by the said contract to be cut, had been cut.

The court (Gilmor, J.,) granted the two prayers of the plaintiff and also the first, third, and fourth prayers of the defendant, which were conceded by the plaintiff, and rejected the second and fifth prayers of the defendant. The defendant excepted, and the verdict and judgment being against him, he appealed.

The cause was argued before Alvey, C.J., Miller, Irving, and Bryan, JJ.

Bernard Carter, for the appellant.

J. Alexander Preston, for the appellee.

Miller J., delivered the opinion of the court.

As to what damages are recoverable for the breach of a contract, we must, in a case like the present, be governed by the rule recently approved by this court in Camden Cons. Oil Co. v. Schlens, 59 Md. 45. In that case we adopted the law as laid down by Alderson, B., in delivering the judgment of the court in the leading case of Hadley v. Baxendale, 9 Exch. 341, thus: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be such as may fairly and reasonably be considered either as arising naturally, i. e., according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." And in the same connection reference was made to Abbott v. Gatch, 13 Md. 333, where the rule was thus stated: "Such damages as are incidental to and caused by the breach, and may be said to flow reasonably and naturally from such breach, and are not accidental or contingent losses, will be allowed, and whether they are of the one character or the other must depend on the nature of the transaction."

The contract in the present case was under seal, bears date the 13th of November, 1879, and by it Fawsett, on his part, agreed to sell all the wood on his farms in Back River Neck, to Furstenburg, for seventy-five cents per cord standing, to mark out such grounds and on such farms as he wanted the wood cut from, and to give Furstenburg full coal privileges; and Furstenburg, on his part, agreed to take all kinds of wood that will do for charcoal, and to leave no wood standing at all that can be made into charcoal, to pay for it as soon as taken from the choppers, or as soon as it is corded and measured, and to receive and haul away from said farms all the wood as above specified within two years from the date of this agreement.

In February, 1882, Fawsett sued Furstenburg in covenant for a breach of this contract. The declaration contains no special statement of damages, but after setting out the contract, simply alleges, as a breach, that the defendant hath not paid to the plaintiff seventy-five cents per cord for all the wood on the land suitable to make charcoal, and hath not hauled away said wood, but has left the same standing, and refuses to cut, haul and pay for the same, contrary to his agreement, whereby the plaintiff has sustained great damage and loss, and he claims $5000.

The trial resulted in a verdict in favor of the plaintiff for $500 damages. The court granted the two prayers offered by the plaintiff and refused to grant the second and fifth prayers offered by the defendant. To this ruling the latter excepted, and that is the only exception in the case.

By the granting of the two prayers offered by the plaintiff (and they were the only ones he presented) the jury were instructed in effect, that if they found, from the evidence that the defendant did not cut and haul away certain of the growing timber mentioned in this contract suitable for making charcoal, and that by his...