Smith v. Richardson , 3 Cai. Cas. 219 ( 1805 )

Per. curiam, delivered by

Tompkins, J.

The affidavit, on the part of the defendant alleges, that the cause oí ac-iion presented by the plaintiffs to the referees, was the nonperformance, by the defendant, of a contract to transport staves belonging to the plaintiffs.

For the plaintiffs it is alleged, that evidence was ad* duced by them, in support of five grounds of action. The' first ground, it was incumbent on the plaintiffs to prove, id order to make out the consideration for the defendant’s promise, which is stated, to have been goods sold and delivered ; and the other four grounds grow out of the special contract. The affidavits are, therefore, reconcileable,

I am inclined to think, the referees have adopted an incorrect principle, in fixing the damages of the plaintiffs»The price s which the articles to be transported, might have brought at the Quebec, or Montreal market, is too uncertain and unreasonable to be admitted as a rule of damages $ neither ought the referees to have taken into the account, interest upon such price. It also appears, that, upon the defendant’s failure to fulfill his engagement, the staves were taken into the possession of the plaintiffs, and lost by them in attempting to transport them, at an unusual and very dangerous season» It is therefore questionable, whether the entire loss of the staves is not attributable to the imprudence and default of the plaintiffs ; but even, if the defendant is answerable for them, the value of the staves at Ghaumont, and not the possible market price at ¡Quebec., or Montreal, ought to have governed the referees. I am, therefore, of opinion, the defendant ought take the effect ef his motion»