Candy v. Candy

Headnote

Breach of contract — meamre of damage' — Agreement to reside with person in consideration of hom'd, eta. — Bale of furniture made necessm’y hy so doing — loss upon such sale — cannot he recovered in action for breach of contract.

Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before wbom tbe action ' was tried.

Tbis action was brought to recover damages sustained by tbe plaintiff in consequence of a breach, by tbe defendant, of a contract ■ by which tbe plaintiff was to live with, and take care of tbe defendant until bis death, and to receive therefor bis board and clothing and that of bis wife. At tbe time of making tbe agreement the plaintiff was keeping bouse in Philadelphia, and when be left there in order to reside with tbe defendant at the latter’s residence at East Hampton, Suffolk county, New York, be sold bis furniture, alleged by him to be worth $470.13, for fifty-one dollars. Tbis loss be sought to recover in tbis action, as one of tbe items of . tbe damages sustained by him through tbe breach of tbe contract.

Tbe court at General Term said: “I have not been able to discover any case which authorizes tbe recovery of tbe alleged loss upon tbe sale of plaintiff’s furniture in Philadelphia. Assuming tbe agreement as proven by plaintiff, be was to remain with defendant during bis natural life, to take care of him and be bis companion, ‘for which service I was to receive tbe board and clothing for myself and wife.’ Tbe sale of tbe furniture was one of the sacrifices which plaintiff made to be able to enter into tbe contract. Defendant did not agree to pay tbe loss on tbe

sale of tbe furniture, nor did be request a sale to be'made at a sacrifice. Tbe loss upon tbe furniture did not in any sense result from a breach of tbe contract. Tbe defendant did not agree to restore tbe furniture sold, in case of a breach of tbe contract by him. Tbe furniture did not enter into tbe contract, nor does tbe loss upon tbe sale thereof flow from tbe breach of tbe contract. It was, therefore, error to admit tbe proof of loss on tbe sale by plaintiff, under defendant’s objection.

Tbe judgment should be reversed and a new trial ordered, costs to abide event.”