Bean v. Carleton , 36 N.Y. St. Rep. 123 ( 1890 )

Van Brunt, P. J.

This is the third time that this case has been before the general term. Upon the previous appeals it was determined that the plaintiff had a right to offer paroi evidence showing that the written contract mentioned in the pleadings did not comprise the whole" contract entered into between the parties, but that additional agreements had been made. Although much may be said against the conclusion arrived at, yet, upon this appeal, we think that it should be followed, and therefore that branch of the case will not be again discussed.

The only other questions raised by the defendants are as to the rule of damages, and an exception to the admission of certain evidence. If the contract was as claimed by the plaintiff, and there was a breach on the part of the defendants, then clearly the plaintiff .would have a right to recover back that which she had paid thereunder, because there is no evidence tending to show that the plaintiff had benefited by the contract so far as it was performed. The defendants failing to do that for which the money was advanced, necessarily gave the plaintiff the right to recover back that which she had paid. As to the exceptions to the admission of evidence, we have examined them, and find none of them which calls for a reversal of the judgment. Upon the whole case, therefore, we think that the judgment should be affirmed.

APPEAL BY PLAINTIFF.

Van Brunt, P. J.

The plaintiff claims by her appeal that the verdict was too small, and that she was entitled to damages for the loss of her manuscript. We think, however, where the plaintiff was aliow'ed to recover back the. total amount paid under the contract, the evidence as to the damage to the manuscript resulting from the failure to print 2,000 copies (1,000 only having been issued) was too speculative to justify any recovery thereunder, and therefore the learned judge ruled correctly in limiting the amount of damages to the moneys paid by the plaintiff under the contract in question. We think, therefore, that the judgment, so far as it is appealed from by the plaintiff, should be affirmed upon her appeal.