Howell v. St. Louis & Hannibal Railway Co. , 171 Mo. App. 92 ( 1913 )

REYNOLDS, P. J.

(after stating the facts). — It will be seen that this is an action upon a contract for damages for its breach, not one in tort; that it is an action to recover the actual damages sustained for the breach of the contract to furnish a car of certain dimensions at a certain time and place. While the forms of civil actions have been abolished in our State, the distinction between actions for -tort and for breach of a contract is observed. Referring to these actions, an accepted authority, quoting from 1 Sutherland on Damages, p. 74 (1 Sutherland, 3 Ed., p. 134), has said: “An important distinction is to be noticed between the extent of responsibility for a tort and that for breach of a contract. The wrongdoer is answerable for all the injurious consequences of his tortious act which, according to the usual course of events and the general experience, were likely'to ensue, and which, therefore, when the act was committed, he may reasonably be supposed to have foreseen and anticipated. But for breaches of contract the parties are not chargeable with damages on this principle. Whatever foresight, at the time of the breach, the defaulting party may have of the probable consequences, he is not generally held for that reason to any greater responsibility; he is liable only for the direct consequence of the breach, such as usually occur from the breach of such a contract, and as were within the contemplation of the parties, when the contract was entered into, as likely to result, from a breach.” [3 Hutchinson on Carriers (3 Ed.), sec. 1358, p. 1609.]

In Melson v. Western Union Telegraph Co., 72 Mo. App. 111, Judge Ellison, speaking for the Kansas City Court of Appeals, at pages 114 and 115, has quoted at length from Hadley et al. v. Baxendale et al., a decision rendered in 1854 in the Court of. Exchequer, the opinion by Baron Aldeesox, reported 9 Exchequer Reports (Welsby, Hurlstone & G-ordon) 341, l. c. 353, the rule for the admeasurement of damages, applicable to actions for a breach of contract. It is not necessary to set this rule out in full here, Judge EimisoN having quoted it as above noted, it being sufficient to say that it is to the effect that where two parties have made a contract, which one- of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either - 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. This has always been recognized in our State as a correct statement of the rule for the admeasurement of damages, in actions for breach of contract. [See Ballentine v. North Missouri Railroad Co., 40 Mo. 491, l. c. 505; Nelson v. Western Union Telegraph Co., supra.]

#Let us see how that rule applies to the facts here. Counsel have referred us to no case which falls directly within the facts here, nor have we, on a somewhat careful and laborious search of the authorities, been able to find any case that exactly corresponds in its facts to the one before -ns.

Irvine v. The Midland Great Western Railway (Ireland) Company, before the Exchequer Division of the Ciourt of Appeals in Ireland, 6 Irish Law Reports (1880-81) 55, throws some light npon the application of Hadley v. Baxendale to a case somewhat similar to the one before ns. There the default of the defendant,, the railway company, was the neglect or refusal to provide the large, open wagons, cars as we call them, contracted for and which the jury found were to he capable of containing four tons each, or, as Baron Fitzgerald, who delivered the opinion said, “if you will, the refusal to carry the hay in such wagons at the price agreed on.” The defendant .had paid a certain sum into court, as covering extra cost of transportation, denying that it was liable for any further damages. The jury, under the direction of the trial judge, had fixed the. damages at a sum largely in excess of-that amount. On.the appeal it was contended by counsel for the defendant that the proper measure ■of damages was the extra cost of carriage, if any, occasioned by the defendant’s beach of the contract in not supplying cars of the kind in contemplation and contracted for. Passing on this contention Baron Fitzgerald said (1. c. 63) that there could he no doubt that the general intention of the law in giving damages in an action of contract is, .to place the party complaining, so far as this can he done by money, in the same position as he would have been in if the contract had been performed; that if, in the case before .the court, the contract had been duly performed plaintiff might, according to the finding of the jury,- have sold his hay at the point of destination at a profit considerably over the amount of the deposit and which larger amount-had been allowed by the jury. “But,”' says Baron Fitzgerald, “in applying this general intention of placing the complainant in the same position as he would have been in if the contract had been performed, to a case like the present, we must remember that the altered position to he redressed must he one 'directly resulting from the breach, and not from any act or omission of the complainant subsequent to the breach, and not directly attributable to it. It is not sufficient that it be an act or omission which would not in fact have taken place but for the breach. . If the plaintiff here, after there had been a complete breach of the contract, had burned the hay, then in order to put him in the same position as he would have been in if the contract had been performed, the jury might have given him the whole (value of the hay) as well as the profit ascertained by the judge; but such an application of the general intention of the law would be manifestly absurd.” Baron Fitzgerald then argues that the plaintiff might have had his hay conveyed in the ordinary cars of the company, to which, according to his own evidence, there was no objection except the price, and might have had the hay at the point of destination while the price was still at the figure when he first expected to have the hay reach there and so would have suffered no loss whatever except as to the difference of freight, which he could have recovered against the defendant as damages. The conclusion was that the sum deposited by defendant more than covered the extra cost of carriage, which was all for which plaintiff could recover.

In Gulf, Colorado & Santa Fe Ry. Co. v. Martin, 28 S. W. 576 (not found in the official reports), the Court of Civil Appeals of Texas held that the measure of damages for the breach of a contract for furnishing cars for the shipment of cattle which compelled plaintiff to cancel the contract for their sale whereby he lost the opportunity of putting them on the market for that season, was the difference between the reasonable value when under herd at the contemplated time and place of shipment and the amount stipulated in the contract of sale.

In Gulf, Colorado & Santa Fe Ry. Co. v. Hodge & Long, 10 Tex. Civ. App. 543, 30 S. W. 829, an action for damages for breach of contract to furnish cars on ■which machinery was to he shipped, the court held that the shipper cohid not recover either for profits lost or for expenses on the part of plaintiff under the contract.

In Laurent v. Vaughn, 30 Vt. 90, the rnle of .damages for failure to furnish transportation contracted for was said to be the difference between the value of the goods at the place they were' delivered and the value at the place to which they were contracted to be delivered, the court applying the rule that the damages recoverable are such as should have been contemplated by the parties at the time of making the contract.'

In Grund v. Pendergast, 58 Barb. (N. Y.) 216, citing Ogden v. Marshall, 4 Seld. 340, it is held that where a party can secure transportation of his goods by carrier other than the one with which he has contracted, it is not only within his right but it is his duty to do so, in which cáse he is entitled to recover-the difference, if any, between the price at which' the defendant had undertaken to carry the goods and the price which plaintiff was compelled to pay the other carrier for its transportation. To the same effect see Gilchrist v. Lumberman’s Min. Co., 55 Fed. Rep. 677, 5 C. C. A. 239. It seems, also that if between the time of the two shipments there had been a shrinkage or deterioration in value of the mules by reason of the delay involved, the amount of that could be taken into consideration in determining the damages. [See Ayres v. Chicago & Northwestern R. Co., 71 Wis. 372, 1. c. 383. See, also,. Chicago & Alton R. Co. v. Erickson, 91 Ill. 613.]

It seems from these authorities that plaintiff could not recover for damages occasioned by the shrinkag-e in value of these mules by reason of the drive from the farm to'Vandalia. This, on the ground that this, driving and its effect were things not within the reasonable contemplation of the parties to the contract.

Whether plaintiff could recover for extra feed for the mules is not before us, the court, at the instance of defendant having told the jury he could not, and plaintiff has not appealed. Plaintiff was allowed for the expense of driving from the station to Vanda-lia hut he voluntarily remitted that.

What were the consequences reasonably to be anticipated by defendant for breach of the contract to furnish the car of the kind specified? Three things might reasonably have been anticipated as likely to result from the breach of the contract. First, a delay in reaching the market; second, expense incident to the delay; third, loss of the market for which they were intended. But on none of these were the damages -claimed or allowed. It was for the alleged shrinkage in the value of the mules in consequence of this drive of some twenty-six miles that evidence was admitted over the objection and exception of defendant. The verdict of the jury was entirely founded upon the testimony as to depreciation in value caused by shrinkage in consequence of this drive. It is true that the jury added ten dollars for the expense attendant upon this driving, but this was remitted by plaintiff. It was on the theory that plaintiff could recover for this shrinkage from the drive that the trial court instructed the jury.

At the instance of defendant the jury were distinctly instructed that defendant was not liable for any injury to plaintiff’s mules while in charge of the Chicago & Alton Railroad Company and that there was no evidence in the case to show any depreciation in the market value of the mules by reason of any fall in the market price of mules in general between the time when the mules were in defendant’s pens at Prank-ford and the time of their arrival at the National Stock Yards at East St. Louis, and the jury were told that they should not allow plaintiff anything for such depreciation. They were specifically instructed also at the instance of defendant that plaintiff was not entitled to recover any damages resulting to the males by reason of their having been taken from Elzea’s farm to Frankford and placed in defendant’s stock pens. Hence all elements of damage were eliminated except those arising from the driving of the mules back from Frankford to the farm and from the farm to Vandalia.

Applying the principles to which we have referred as governing cases of this kind in a suit on a contract, we can arrive at no conclusion other than that the only damage that plaintiff was entitled to in the matter, under the facts in this case, are for any expense incurred in driving the mules from Frankford to Elzea’s farm and Any depreciation in the value of the mules by that drive. To this plaintiff is entitled and to no other damage or expense.

Other questions are raised by counsel for appellant but in the view we take of the case, it is not necessary to consider them.

It follows that the judgment in the case must be reversed and the cause remanded with direction's to the circuit court to ascertain the amount, if any, of such damage and expense and enter judgment accordingly for plaintiff.

Nortoni and Allen, JJ,, concur.