Lewis v. Hartford Dredging Co. , 68 Conn. 221 ( 1896 )

Baldwin, J.

The contract in suit was one for services to be rendered in dredging material from the bed of the Housatonic river at a designated point, and spreading it over the plaintiff’s oyster grounds at Westport, by a certain day in August, when the spawning season for oysters was expected to open. These grounds were of such a character that for raising seed oysters upon them it was necessary to spread some hard material over them, in order to intercept the floating spawn. This, in the phrase of the trade, is “planting” them, to “catch a set.” The material which could be dredged up at the point agreed on was largely shells, and better adapted to use on these grounds than.anything else. To do work of this description, a certain kind of dredging outfit is required, capable of dumping shells with facility. The defendant had such an outfit, but instead of employing it in the execution of the contract, employed one Tebo to undertake it, with an inferior and unsuitable, plant.. Tebo, finding that his outfit was ill adapted to dumping shells, abandoned the work after a few daj’s, and the superintendent of the defendant then informed the plaintiff that it was doubtful if any other dredging outfit could be obtained to perform the work, and that he “ must protect himself by obtaining other material that might be available.” Thereupon he bought crushed stone in New York, and had it spread upon part of his grounds, at an expense considerably greater than that to which he would have been subject, had they been planted as the contract required. Such stone was the best material then available for planting purposes, and the only material in the market, so far as the plaintiff knew, which was adapted for use upon his grounds.

The Superior Court, in assessing the plaintiff’s damages, properly allowed him this difference in cost. The breach of a contract to render services ordinarily entails a liability for nothing more than the difference between what it would cost to get the same services performed by another, and the contract price. But in the case at bar no other could be found who was able to do the work. It could not be undertaken without a peculiar kind of outfit, which few possessed. The plaintiff only bought the crushed stone after the defendant had informed him that it was doubtful if such an outfit could be anywhere procured, and that he must protect himself by procuring other material than that which the contract contemplated. While it was much more costly than the river material would have been, it was the only thing to be had which would answer the purpose, and this purpose was one of which the defendant had reasonable notice before the contract was executed. The point at which the material was to be dredged was so far determined that the defendant could easily have ascertained the character of the river bed; and the place of delivery was also fully described. The defendant had dredged for oyster-growers before, and had done this for the plaintiff among others, to enable him to plant his oyster grounds for catching a set. Soundings would readily' have disclosed the character of- the bottom on which the material obtained from the river was to be spread. The defendant had no right to assume that any kind of material-which might he dredged up anywhere would be adapted for use upon these grounds; and the plaintiff was justified in refusing to accept its tender of the muddy deposit obtained from the Bridgeport bar. He was justified also in taking the defendant at its word, and protecting himself against the consequence of its default, by procuring suitable material for his purposes elsewhere. That he acted reasonably in the purchases he made is conclusively established by the findings of the trial court; and the numerous exceptions taken by the defendant to its conclusions of fact from the evidence in this' respect are not the subject of an appeal. Enfield v. Ellington, 67 Conn. 459.

To show that the material dredged from the Bridgeport bar was unsuitable for use on a sticky bottom, and that crushed stone was suitable, and well adapted for catching a set, expert testimony was properly received. Only from those skilled in oyster culture could information on these points be expected.-

The letter from the plaintiff of July 19th, while evidently written in an argumentative strain, was admissible to show that he gave the defendant prompt notice of his intention to set up the claims which are the basis of this suit, and to protect himself at its expense by the purchase of crushed stone.

But in the admission of evidence as to the difference in market value on August 12th between an acre of the plaintiff’s oyster grounds, unplauted, and an acre planted in the manner provided by the contract, as well as in the award of damages including such an estimated difference in value, there was error.

By its failure to provide.the proper material for planting part of these grounds, the defendant became liable to pay the plaintiff such damages as might have been reasonably contemplated, at the date of the contract, as the probable and direct result of its breach. The defendant knew that the material which it was to dredge and spread was wanted to ’ form a bed for oyster culture, and to form it by the opening of the spawning season. These special circumstances were in the minds of both parties; but if they could, in any case," avail to create a right to special damages of the nature claimed, for a failure to prepare the grounds for'oyster cultivation,—the sole use to which they could be put,—it would be only on proof either that such grounds, when planted with suitable material, were permanently improved, or that such material generally catches a set, and that a set generally results in a valuable crop of seed oysters. On the contrary, however, it appeared that the results of planting were uncertain and conjectural in Character, and the trial court states that the item of $2,280.13, included in its award of damages, which is now in question, was not based on any consideration of “ future profits arising from the actual raising of oysters upon the unplanted area, or the enhanced value of the same from a ‘set’ attached to the material spread thereon, but is based upon a comparison of the market value of the planted and unplanted territory at the time fixed in the contract for its completion, and while the result of such planting was unknown.”

This difference in market value was fixed at $30 an acre, while the contract price for planting (for which a deduction was allowed in ascertaining the exact loss) averaged less than $14 an acre. No part of this enhanced value of over $16 an acre could be attributed to any hardening of the bottom, by which, although no set were obtained, the grounds would be permanently improved. This was explicitly admitted in the trial by counsel for the plaintiff; and although that circumstance is not mentioned in the finding of the trial court, as the defendant specially requested that it be stated, and it appears in an extract from the official stenographic report of the proceedings, filed with the request, which is agreed by counsel for both parties to be a correct narrative of what occurred, we consider the finding as if it had been so drawn as to set forth the admission, as made. It follows that the expert witnesses and the court must have viewed the increase of value which would have followed the execution of the contract, as coming from the adaptation of the grounds to oyster culture during the spawning season then about to open. To allow for any enhancement of value on that account is, practically, to speculate on the chances of catching a set and raising a profitable crop. Such consequences were too remote for consideration, and too uncertain, both with respect to their nature and to the cause from which they would proceed. Cohn v. Norton, 57 Conn. 480, 494; Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199.

As respects the area necessarily left unplanted in consequence of the defendant’s default, damages (in the absence of special circumstances calling for the application of a different rule) should have been limited to compensation for the loss of the use of the land until it again became practicable and proper to plant or otherwise improve it for oyster cultivation, in the usual course of the oyster growers’ business. Such loss would ordinarily be the fair rental value of the grounds, or if this could not be ascertained, the interest on their market value, in their unplanted condition, with the amount chargeable for taxes upon them, for the period in question.

The finding states however, that the plaintiff owned several thousand acres of oyster grounds, only a portion of which was under cultivation, and an extensive plant of shops, docks, and oyster steamers. Of these grounds, 475 acres lay off Westport, of which only a hundred had 'ever been planted. In the prosecution of the oyster business “a certain area of oyster ground is planted each year, that successive crops may be matured and marketed or sold as seed oysters.” If these special circumstances were or ought to have been known to the defendant before the execution of the contract in suit, and if the plaintiff could show that the failure to plant the whole of the Westport grounds so disarranged the ordinary and natural succession of his crops, or otherwise disturbed the ordinary and natural course of the business as respects the use of his other property, that he suffered special damages as a probable and direct result, which both parties ought, in reason, to have foreseen, a further recoveiy might be allowed, upon such an amendment of the complaint as to apprise the defendant of the nature of the loss actually sustained. The plaintiff has alleged that he incurred expense in locating and staking out the place in the river where the dredging was to be done, and securing a license from tbe government of the United States for dredging there, and hiring inspectors for the work, and for scows and harrows to complete the distribution of the material to be dredged, over his grounds, and steamers chartered to aid in the same work and that he should be reimbursed for such part of these payments as was properly made to secure the planting of the portion of his grounds which was in fact left unplanted. If such special circumstances existed, and were or should have been in the contemplation of the parties when the contract was executed, the plaintiff’s claim in this respect also would be a proper one, so far as his expenditures were reasonably necessary for the purpose, subject to a deduction for any benefits which he may have otherwise received from them.

There is error in the award of the damages on account of the unplanted oyster grounds, and a new trial is granted for the sole purpose of re-assessing the damages on that account, in accordance with the principles above stated.

In this opinion the other judges concurred.