Pittsburg Coal Co. v. Foster , 1869 Pa. LEXIS 24 ( 1868 )

The opinion of the court was delivered, January 4th 1869, by

Agnew, J.

The only question we need discuss in this case is that relating to the measure of damages. The defendants below offered in substance to prove the difference in the expense of transporting the coal carried on their railroad, between horse or mule power and steam-power, and for this purpose, to prove how much ■ coal was actually carried over their railroad between the 1st day of February — the time for the delivery of the engine under the contract — and the day when the engine was actually put in running order on the road; claiming that this difference of expense was a loss directly occasioned by the failure to finish and deliver the engine in time.

The learned judge overruled this offer, being of opinion that the measure of damage's for the delay was the ordinary hire of a locomotive during the period of the delay. We think that under the circumstances of the case, this was an error. It was in proof, and was also a part of the offer, that the only means the defendants had of transporting their coal was by horses and mules, and it also appeared in the evidence that, owing to the gauge of the railroad track and the kind of engine required for their use, it was impossible to have procured for hire an engine to suit their pui’pose, and that the hire of such an engine was purely a speculative and not a practical question, owing to the fact that the witnesses knew of none such to be had.

The true inquiry which arose under these circumstances, was whether the damages thus claimed were the necessary consequence of the failure to perform the contract in time, and whether they were presumptively within the view of the plaintiffs at the time of making their contract to finish and deliver the engine in running order on the defendants’ track by the 1st of February. The-damages ordinarily recoverable are those necessarily following the breach, which the party guilty of the breach must be presumed to know would be the probable consequence of his failure: 2 Grreenl. Ev. § 253. This rule is well expressed by Strong, J., in Adams Express Co. v. Egbert, 12 Casey 364. They must be a proximate consequence of the breach, not merely remote or possible. There is no measure for losses of the latter kind. “But, on the other hand,” he remarks, “the loss of profits or advantages, which must have resulted from a fulfilment of the contract, may be compensated in damages, when they are the direct and immediate fruits of the contract, and must therefore have been stipulated for, and have been in the contemplation of the parties when it was made.”

This statement of the rule is quoted with approbation by Thompson, J., in Fassler v. Love, 12 Wright 410-11. The subject is also discussed at large by myself in Fleming v. Beck, same volume, 312-13, and the same rule in substance quoted from Hadley v. Baxendale, 26 Eng. L. and Eq. 398.

That the loss in this case was immediate and the necessary consequence of non-fulfilment, is obvious. The coal company was by the contract to have a finished locomotive adapted to their railroad put in thorough running order upon their track by the 1st day of February. The direct consequence of not getting it was, that they were obliged to continue transporting their coal as before, by horses and mules, until the engine was put there. It is quite as clear, also, that this consequence must have been in full view of Foster & Co. when they entered into the contract. The instrument evidencing the agreement was a proposition of Foster & Co., accepted by the president of the coal company. It was directed to James M. Bailey, president of the Pittsburg Coal Company, and proposed to build a locomotive engine to fit a forty-inch track. It was to be built in a workmanlike manner, of the best material, and finished by the 1st day of February then next, and “ put in thorough running order on your track on or before that day.”

The price, $5500, was to be paid, to wit: $1500 on the 16th day of January, “and the balance when the engine is completed and running on your road.” Thus the proposition to build the engine shows very clearly that Foster & Co. knew that it was to be used in running on a coal railroad and upon a track of unusual gauge, and the proof shows that at the time of the making of the contract, engines of the size and character of the one described in the proposition were not in ordinary use and could not be hired. From the nature of the circumstances, Foster & Co., as engine-builders, must have known that if they failed to deliver the engine on the track by the day agreed upon, the coal company would be forced to continue transporting their coal by their former means, and consequently would suffer a loss in the difference of expense of transportation between the old mode and the one stipulated for in the contract. •

To this extent, therefore, we think the court below erred in rejecting the testimony. But the superadded offer, when the proposition was renewed, to prove that the defendants could have mined and hauled one-third more coal with the engine than by the old mode and to show the profits arising thence, was rightly rejected by the court.

While it is obvious that Foster & Co. must have known that their failure would compel the company to continue in the use of their old mode of transportation, it cannot be fairly inferred that they would know thai the possession of the engine would enable the company to mine'more coal and also to haul more. This is a possible or remote consequence, but not a necessary one. For augbt Foster & Co. could know, the defendants were mining to the extent of their ability to operate in the mines; and even could they mine more, it does not follow they must know that the engine would haul more in the same time than the company could do with their horses and mules. The principles governing this offer are stated pretty fully in Fleming v. Beck, 12 Wright 312-13.

The reversal of the judgment renders the rejection of James M. Bailey as a witness unimportant, for on the next trial the charter can be given in evidence showing that the president of the company must be a stockholder, and if he be offered it must be shown that he has since transferred his stock.

Presuming Bailey to have been interested, it was clearly right to reject his oath as a means of divesting himself of his interest.

An interested witness cannot be offered to purge himself of his interest by his own voire dire. The refusal to receive the transfer-book without evidence of its true character being given, was also right. Corporation books do not prove themselves.

The rejection of Greisse’s deposition was also right. At the time of offering it no competent purpose was stated as the ground for its reception, and so far as the court could discover upon its face, it did not seem to be relevant to any such purpose. It is the duty of a party to state the purpose of his offer, if the evidence is not obviously competent on its face. A court is not bound to search for some distant relevancy that may exist, but which cannot readily be discerned without the attention of the court being directed to it.

But for the error as to the true measure of the damages, the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.