Pittsburg Coal Co. v. Foster

• Decision Date: 04 January 1869
• Citation: 59 Pa. 365
• Parties: The Pittsburg Coal Co. <I>versus</I> Foster <I>et al.</I>
• Court: Pennsylvania Supreme Court

59 Pa. 365

The Pittsburg Coal Co. versus Foster et al.

Supreme Court of Pennsylvania.

November 4, 1868.

January 4, 1869.

November 4th 1868.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., absent

Error to the District Court of Allegheny county: No. 40, to October and November Term 1868.

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J. H. Bailey, for plaintiffs in error.—There was nothing speculative as to the loss incurred in transporting the coal — it was loss actually sustained: Sedgwick on Measure of Damages 61, 73, 76; Hadley v. Baxendale, 26 Eng. L. and Eq. 398; Masterton v. Mayor of Brooklyn, 7 Hill 62; Fox v. Harding, 7 Cush. 516; Fletcher v. Taylor, 12 C. B. 21; Adams Express Co. v. Egbert, 12 Casey 364; Morgan v. Negley, 3 P. F. Smith 153.

C. B. M. Smith, for defendants in error.—As to damages cited, Hadley v. Baxendale, Adams Express Co. v. Egbert, Morgan v. Negley, supra; Thompson v. Shatrick, 2 Metc. 615; Thompson v. Foord, 1 Ellis & Ellis 602; Taylor v. Maguire, 12 Mo. 313; Brown v. Foster, 1 P. F. Smith 165.

The opinion of the court was delivered, January 4th 1869, by AGNEW, J.

The only question we need discuss in this case is that relating to the measure of damages. The defendants below offered in substance to prove the difference in the expense of transporting the coal carried on their railroad, between horse or mule power and steam-power, and for this purpose, to prove how much coal was actually carried over their railroad between the 1st day of February — the time for the delivery of the engine under the contract — and the day when the engine was actually put in running order on the road; claiming that this difference of expense was a loss directly occasioned by the failure to finish and deliver the engine in time.

The learned judge overruled this offer, being of opinion that the measure of damages for the delay was the ordinary hire of a locomotive during the period of the delay. We think that under the circumstances of the case, this was an error. It was in proof, and was also a part of the offer, that the only means the defendants had of transporting their coal was by horses and mules, and it also appeared in the evidence that, owing to the gauge of the railroad track and the kind of engine required for their use, it was impossible to have procured for hire an engine to suit their purpose, and that the hire of such an engine was purely a speculative and not a practical question, owing to the fact that the witnesses knew of none such to be had.

The true inquiry which arose under these circumstances, was whether the damages thus claimed were the necessary consequence of the failure to perform the contract in time, and whether they were presumptively within the view of the plaintiffs at the time of making their contract to finish and deliver the engine in running order on the defendants' track by the 1st of February. The damages ordinarily recoverable are those necessarily following the breach, which the party guilty of the breach must be presumed to know would be the probable consequence of his failure: 2 Greenl. Ev. § 253. This rule is well expressed by Strong, J., in Adams Express Co. v. Egbert, 12 Casey 364. They must be a proximate consequence of the breach, not merely remote or possible. There is no measure for losses of the latter kind. "But, on the other hand," he remarks, "the loss of profits or advantages, which must have resulted from a fulfilment of the contract, may be compensated in damages, when they are the direct and immediate fruits of the contract, and must therefore have been stipulated for, and have been in the contemplation of the parties when it was made."

This statement of the rule is quoted with approbation by Thompson J., in Fassler v. Love, 12 Wright 410-11. The subject is also discussed at large by myself in Fleming v. Beck, same volume, 312-13, and the same rule in substance quoted from Hadley v. Baxendale, 26 Eng. L. and Eq. 398.

That the loss in this case was immediate and the necessary consequence of non-fulfilment, is obvious. The coal company was by the contract to have a finished locomotive adapted to their railroad put in thorough running order upon their track by the 1st day of February. The direct consequence of not getting it was, that they were obliged to continue transporting their coal as before, by horses and mules, until the engine was put there. It is quite as clear, also, that this consequence must have been in full view of...