Ogden v. . Marshall , 8 N.Y. 340 ( 1853 )

It was assumed on the trial in the court below, and on the argument in this court, that the evidence tended to establish a valid contract made between the parties, by which the defendant agreed to receive from the plaintiff, on board of the packet ship Yorkshire, 12,000 bushels of corn at New York and carry it to the port of Liverpool, and to sail on the sixteenth day of January, 1847, at and for the price of sixteen pence sterling per bushel which the defendant afterwards refused to perform, and that after the making of the contract and before the sailing of the ship freight rose to nineteen pence sterling per bushel. The only question submitted is, whether the plaintiff under these circumstances, is limited in his recovery for such a breach of the contract, to nominal damages.

It is a general rule of law, that when an injury has been sustained, for which the law gives a remedy, that remedy shall be commensurate to the injury sustained. On all contracts, the party injured by the breach or nonperformance, is entitled to a full indemnity. From the facts in this case, I think that the difference between the price agreed upon, for transporting the corn and that for which its carriage might have been obtained by others, at the time when the ship was to receive the corn, is the true measure of damages for the breach of the contract by defendant.

In the case of Bracket v. Mc Nair (14 Johns. 170,) it was held that in an action for the breach of a contract to transport salt from Oswego to Queenston, where by the refusal and neglect of the carrier to take the salt at the time agreed, the opportunity to transport the same was wholly lost by the intervention of the embargo or non-intervention act, the difference between the value of the salt to be carried, at the place of its intended embarkation and its value at the place of its intended delivery, less the carriage and necessary expenses was the true measure of damages. The principle of that case governed the decision in O'Conner v. Foster in 10 Watts, 418.

The judge erred in his charge to the jury that the plaintiff was not entitled to recover beyond nominal damages. The judgment must be reversed and a new trial ordered, with costs to abide the event.

RUGGLES, Ch. J., GARDINER, JOHNSON and MASON, JJ., concurred in the opinion of Judge JEWETT.