Liman v. Pennsylvania Railroad — 54 N.Y. St. Rep. 245

Majority

p. 245

George Liman, Resp’t, v. The Pennsylvania Railroad Co., App’lt.

(New York Common Pleas, General Term,

Filed Aug. 9, 1893.)

Headnote

1. Contract—Breach—Consequential damages.

To authorize a recovery of consequential damages resulting from a breach of contract by force of special circumstances, all that is required is that sufficient information of such special circumstances be. given by one of the contracting parties to the other, so that the latter may be put upon reasonable inquiry concerning them.

2. Same.

Plaintiff delivered to defendant at New York a sum of money for a passage ticket from Johnstown, Pa., to Chicago, to be delivered that day to one R, a museum;! reak, at Johnstown; and stated at the time that it was essential that it be delivered that day to enable R to proceed to Chicago, where he was required to appear four days later for the purpose of exhibition pursuant to an engagement made by plaintiff. The ticket was not delivered and R failed to appear at Chicago, whereby plaintiff lost the profits on his contract for his exhibition. Held, that plaintiff’s statement was sufficient to put the defendant on inquiry, and that defendant not having made such inquiry, must be deemed to have intended to assume responsibility for such damage as plaintiff would sustain from the breach of the engagement for R.’s exhibition so far as it was occasioned by its own breach of contract.

Appeal from a judgment for plaintiff recovered in the district court in the city of Hew York for the sixth judicial district.

Action to recover damages which had accrued to plaintiff from defendant’s neglect to transmit and deliver, as agreed, a railroad passage ticket to plaintiff’s employe to enable the latter to proceed in the performance of plaintiff’s business.

Herbert J. Hindes, for resp’t; Henry A. Robinson, for app’lt.

On the trial it appeared that one John Eauth, a museum freak, known as the “ Longest Headed Man in the World,” was under contract with plaintiff to exhibit himself under plaintiff’s direction for the agreed compensation of forty-five dollars per week besides traveling expenses, and that plaintiff was under a further contract with Kohl & Middleton to exhibit Eauth at their museum in Chicago for the two weeks commencing January 9, 1898, in consideration of the sum of seventy-five dollars for each week, which Kohl & Middleton had promised to pay.

It further appeared that, on January 5, 1898, Eauth was in Johnstown, Pennsylvania, and that on that day plaintiff paid defendant, at its Hew York office, eighteen dollars, in consideration of which defendant undertook to deliver forthwith to Eauth, at his address in Johnstown, which was at the time imparted to defendant, a railroad passage ticket to enable Eauth to proceed by rail from Johnstown to Chicago. It still further appeared that plaintiff's contract with defendant was oral, and that at the time of making it defendant was informed by plaintiff’s representative that delivery of the ticket to Eauth on the same day was essential to enable Eauth to proceed to Chicago, where he was required to appear on the succeeding ninth day of the month for the purpose of exhibition, pursuant to an engagement to that effect. It did not appear that further particulars of plaintiff’s contract with

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Kohl & Middleton were imparted to defendant, or that defendant ever attempted to make delivery of the ticket to Rauth, though plaintiff caused urgent inquiry to ascertain the fact of such delivery to be made of defendant on each of the two days next sncceeding the day of his agreement with it. It was conceded that the ticket was not delivered. The evidence also sufficiently supports a finding that Rauth, who had been advised by plaintiff to await the delivery of the ticket, did not proceed to Chicago, in consequence of which plaintiff lost the benefits which would otherwise have inured to him from his contract with Kohl & Middleton. Upon the above state of facts plaintiff recovered judgment against defendant for seventy-eight dollars, being the eighteen dollars paid defendant for the railroad ticket and thirty dollars profit for each of the two weeks engagement with Kohl & Middleton.

Defendant now, while conceding the rule to be that consequential damages resulting from a breach of contract by force of special circumstances are recoverable provided they may be said to have been within the reasonable contemplation of the contracting parties at the time of making the contract, Hadley v. Baxendale, 9 Exch., 353; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y, 487 ; Eagle Tube Co. v. Edward Barr Co., 16 Daly, 212 ; 32 St. Rep., 299 ; Sutherland on Damages, vol. 1, § 50, etc., yet assails the recovery as unwarranted, upon the ground that the rule is inapplicable to the case at bar because sufficient information of the special circumstances from which the damages arose was not imparted to it In this view we do not concur. All that seems to be required is that sufficient information of such special circumstances be given by the one to the other of the contracting parties so that the latter may be put upon reasonable inquiry concerning them.

It was so held in Rittenhouse v. Independent Line of Telegraph, 44 N. Y., 263 ,265, wherein the court of appeals say with reference to defendant’s negligence in the transmission of a telegraphic message : “ If defendant’s agents did not understand the importance or import of the message, they could have inquired of the plaintiff, and hence, for all the purposes of this action, it must be treated as fully understanding the message and the consequences which would result from its erroneous transmission.” See also Sprague v. Western Union Telegraph Co., 6 Daly, 200 ; aff’d, 67 N. Y., 590 . We do not interpret the opinion of the court in Booth v. Spuyten Duyvil Rolling Mill Co., supra, as intending that a contracting party may, notwithstanding that he has been sufficiently informed of the existence of a certain other contract, the performance of which is dependent upon performance of the proposed contract with him, to put him upon reasonable inquiry in respect thereto, shield himself "against consequential damages by wilfully or deliberately abstaining from the inquiry. With respect, therefore, to plaintiff’s right to recover the profits of his contract with Kohl & Middleton, plaintiff had adequately discharged the duty incumbent upon him when he informed defendant that the ticket purchased for delivery to Rauth was required to enable the latter to proceed to Chicago

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in fulfillment of an engagement for his exhibition there on the 9 th of January. It was then that defendant, by reasonable inquiry, could have ascertained, if it cared to know, what the probable extent of its responsibility for a breach of the proposed contract would be. Having refrained from the inquiry and made the contract notwithstanding, defendant must be deemed to have intended to assume responsibility for such damage as plaintiff would sustain from the breach of the engagement for Rauth’s exhibition in Chicago, in so far as that breach was occasioned by defendant’s breach of its contract with him.

It does not appear that plaintiff could reasonably have transmitted the means of enabling Rauth to proceed from Johnstown to Chicago in sufficient time to have prevented the non-fulfillment of his contract with Kohl & Middleton, and thus to have avoided the damage resulting from the loss of that contract, by others than defendant. Hence, plaintiff cannot be said to have contributed to the damage accruing from defendant’s breach of contract; and the burden of proof that the damage was increased by plaintiff’s neglect was upon defendant. Colrick v. Swinburne, 105 N. Y., 503 ; 8 St. Rep., 172 . At any rate, if other means were available to plaintiff in the respect stated, he was sufficiently excused from pursuing them by the assurances of defendant’s agent that the ticket had been transmitted and delivered to Rauth.

The judgment is affirmed, with costs.

G-iegerioh, J., concurs.