Burrell v. New York & Saginaw Solar Salt Co. ( 1865 )

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 and covers each month, from the time of commencing the work. The lumber was to be delivered in assorted piles; and the complaint made by the plaintiff is, that in consequence of the lumber not being assorted as it should have been, the labor of loading the same for cartage from the dock to the place were it would be used was greatly increased, and that delays occurred in the delivery of the lumber which essentially hindered performance by the plaintiff, until he finally, at the request of defendants, abandoned the contract altogether. The declaration contains but one special count, which sets out the contract, and avers in general terms that the parties entered upon performance; that the plaintiff was always ready and willing to complete and fulfill it on his part, but that the defendants hindered, delayed and prevented his so doing, by neglecting to furnish materials, so that he only partly executed the same, whereby he is greatly injured and damnified, &c. On the trial the defendants objected to all evidence tending to show special damage, because no special damage was sufficiently alleged; and all the evidence was taken subject to the objection.

Under this general allegation of damage, the plaintiff would be entitled to recover those damages only which the law presumes to have accrued from the wrong complained of. 1 Chit. Pl. 895; Deforest v. Leete, 16 Johns. 122. The wrong, complained of is the failure by the defendants to deliver material, by reason of which the plaintiff was hindered and delayed in the performance, and finally compelled to abandon the contract. The Circuit Judge allowed the plaintiff to recover the profits he would have made, had he been suffered to complete the work; and the witnesses, in making their estimates, were permitted to take into the account the peculiarly favorable season for work of the description to be done. The plaintiff was thus allowed to recover the difference between the contract price and the sum which it would have cost him to complete the contract at the time agreed, after deducting the payments received.

The damages which the law seeks to award to the party wronged, are such as will compensate him for the injury sustained. Allison v. Chandler, 11 Mich. 542. Where the party is to perform labor, from which a profit is to spring, as the direct result of work done at a contract price, and he is prevented from earning this profit by the wrongful act of the other party, the loss of this profit is a direct and natural result which the law will presume to follow the breach of the contract; and he is entitled to recover it without special allegations in his declaration. The consideration of profits cannot be separated from the circumstances under which the work was to be done; and the plaintiff was entitled to show whatever was peculiarly favorable, and which tended to diminish the cost of completing the contract. Every party in entering into a contract, the profits of which depend upon contingencies, takes upon himself the risk of their proving favorable ; and it could not be permitted that one party, after the other had assumed the risk and found the contingencies to result in his favor, should have the option to terminate the contract, and procure the work to be completed at less fates, without fully compensating the other for the profits which he is wrongfully prevented from earning-. The rule of damages adopted was substantially correct, and it only remains to be seen whether the computation made by the Circuit Judge is satisfactory to us, on a review of all the facts.

[The Court then proceeded to an examination of the testimony as to the amount of the damages, and fixed the sum at $2,6 Í 8 41.J

For this sum, together with costs of the court below, the plaintiff' will have judgment. As this sum is a considerable reduction from the amount of the judgment of the court below, the defendants will recover costs of this court.

Christiancy and Campbell JJ. concurred.