Woodbury v. Jones , 44 N.H. 206 ( 1860 )

Bellows, J.

The jury might have found the proposition of August 12, 1859, made by letter of the defendant, to have been accepted, and the bargain made upon that footing; and therefore the expense of removing to New-Boston would be part of the consideration for the defendant’s promise, as is alleged in the declaration. If so, the jury might properly consider it, in assessing the damages, the same as if he had paid the defendant money which was stipulated to be paid as part of the consideration ; and in such cases it seems to be well settled; Stevens v. Lyford, 7 N. H. 360; where it was held that money advanced toward the lumber contracted to be delivered, might be included, though not specially stated in the declaration.

In this case the recovery was upon a count on the contract itself. Indeed, it is clearly so upon principle; for if the whole price has been paid, the plaintiff is entitled to the full value of the goods to be delivered; but if nothing has been paid, the rule of damages would be the difference between the contract price and the real value, at the time and place of delivery; although, in any event, the plaintiff is entitled to some damages for the breach of the contract, even if the value of the goods has fallen below the contract price. So, if he has paid part, and the defendant fail to deliver the goods, the amount so paid may be recovered back as damages; and it has been held that the defendant, after receiving part payment, can not be permitted to show that, by reason of the fall in the price of such goods, the plaintiff would have suffered loss by the delivery of them. This was distinctly held in Bush v. Canfield, 2 Conn. 485, and so is Dego v. Wagoner, 19 Johns. 241. Bor aught we can see, the expense incurred by the plaintiff in removing to New-Boston was incurred in part performance of his part of the contract, as much as would have been the carrying on the farm, or the payment of money; and, upon the authority of Stevens v. Lyford, was properly considered in assessing the damages. This expenditure was distinctly contemplated in the contract itself, and, unlike the case of Stevens v. Lyford, it is set out in the declaration. Had the defendant broken his contract before the plaintiff had incurred any expense, or suffered any loss in the part performance of it, then only the value of tbe contract beyond the cost of performance by the plaintiff of his part, would have been recovered; but as he had performed a part, it is obvious for that he should be indemnified. This is part of the loss which the defendant’s failure has occasioned the plaintiff’; that is, the expenditure of money in performance of the contract directly, and which has proved fruitless by the-defendant’s failure, and comes within the rule laid down in Evans’ Pothier 90, 91 (see 21 Wend. 348). This view is sustained by numerous cases. Johnson v. Arnold, 2 Cush. 46, where the defendant failed to supply the plaintiff with a stock of goods, at a certain store, to trade with on shares, as he had agreed, and the plaintiff was allowed to recover for the expense of removing to the place, and loss of time. So is Diggs v. Dwight, 17 Wend. 71, where the defendant had refused to give possession of a certain tavern stand, which he had agreed to lease him. The plaintiff was allowed to recover for the expense of his removal thither, although not specially stated in the declaration. A similar doctrine is laid down in Evans’ Pothier 91, in case of the failure of a lessor’s title to land. So it was held that loss of time and expenses incurred in preparation for marriage, are directly incidental to the breach of promise of marriage. Smith v. Sherman, 4 Cush. 408, per Shaw, C. J.

On a contract to pay a certain price for rafting logs, the defendant put an end to it before the labor began; — held, the plaintiff might recover the immediate loss in preparing to perform the contract, and in providing men for that purpose, though the defendant was allowed to show that it would cost inore than was to be paid. Durkee v. Mott, 8 Barb. 423. In Nurse v. Barnes, Thomas Raymond 77, where the defendant, in consideration of ¿610, agreed to let certain mills to the plaintiff for six months, and then refused to give possession, the plaintiff was allowed to recover for the loss of stock laid in, as damages; and the jury found ¿6500, though the rent was only, in value, ¿620 per year. So in an action for breach of an engagement, to let certain rooms, the plaintiff was permitted to show that they were taken for his wife, to be used in her business as a milliner, and that she had sustained a considerable loss from, the passing by of a profitable season of the year for such business, this being an advantageous location; and the court held that this was not special damage which was required to be set but. Ward v. Smith, 11 Price 11.

Upon these authorities it would seem that the plaintiff might recover for expenses incurred in removing his family, if done in execution of a contract then made, and probably also for loss of time caused by it; and it might come within that class of cases where the readiness of the plaintiff to perform his part of the contract, being for personal services, would entitle him to the full value of the board and produce of the farm, without any deduction for the plaintiff's labor in carrying on the farm ; at least, such seems to be the doctrine in respect to contracts for the hire of clerks, agents,laborers, domestic servants, and others, for a year or shorter period, unless the defendant can show that the plaintiff was actually engaged or offered similar employment. 2 Greenl. Ev. 261, a, and note.

But the court went farther, and instructed the jury that they might take into consideration the loss sustained by the .plaintiff in the sale of his property, evidence having been received that he sold it at a sacrifice. If this sacrifice could be regarded as within the terms of the agreement, that is, if it could be found that a sale was contemplated by the agreement at all events, whether at a sacrifice or not, then a loss sustained in that way might, perhaps, properly be considered in assessing the damages ; but in this case, to say the least, it is not made to appear that such was the contract, so clearly as to justify the unqualified instructions that such losses were to be considered in making up the damages. Beside, the declaration does not specify these losses as grounds of the' plaintiff’s claim to damages; and unless they are deemed necessarily to result from the breach by the defendant, they should be specially stated, in order to apprize the defendant of the facts intended to be proved. 1 Ch. Pl. 338-395; 1 Saund. 243, c, note 5. Whether such losses could, in any mode of pleading, be included in the damages, must depend upon the character of the agreement as found by the jury; and we think it is quite clear that they might, on this testimony, have found it such as not to give the plaintiff the right to claim for such losses in any form.

The other questions raised are not material, as the verdict is to be set aside, and they may not again arise; although it maybe suggested that the agreement made, after the plaintiff came on, to furnish meat, drink and breadstuff's for the family, if that is relied on, may not be in entire conformity with the declaration, which may need to be amended.

Verdict set aside.