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commenced an action of summary process

this character is stated in Cohn v. Norton against Harris, which was not carried to a to be that “the plaintiff is entitled to recover successful issue, and Harris remained in pos the rent paid, and the difference between the session until the following August.

rent agreed to be paid and the value of the The plaintiffs tendered to the defendant term, together with such special damages as the rent on the 1st of April and of May, and the circumstances may show him to be entidemanded possession. The plaintiffs further tled to"; and, citing the leading case of Hadleased the State street store for the month ley v. Baxendale, 9 Exch. 341, it is said that, of April for $50, and on the 8th of May as in ordinary cases of breaches of executory leased that store and paid the rent for the contracts, the essence of the rule is “that the same for one year from March 1st, being defendant must in some measure have conunable to obtain a lease of it for one month. templated the injury for which damages are .

The plaintiffs opened their millinery busi claimed. If it was the direct and natural reness in the State street store on or about sult of the breach of the contract, he did conApril 1, and continued business there until template it; but if the injury did not flow August 1, 1897, and used there the fittings | naturally from the breach, but the breach and furnishings ordered for the def dant's combined with special circumstances to prostore. In July the plaintiffs leased a store duce it, then the defendant did not contemon Main street from the 1st day of August, plate it, unless he had knowledge of the spe1897, for one year, at a rent of $1,050, called cial circumstances”; and that there may be the "Coughlin Store," and transferred to that cases in which, from the nature of the transstore the fixtures and furnishings used at the action and the character of the business in State street store, and were put to the fur which the party is engaged, the defendant ther expense of $800 in altering and fitting will be deemed in law to have contemplated that store for the millinery business. Mary the injury for which damages are claimed, E. Hogan continued in the employ of the although not expressly informed of the speplaintiffs in their business in the State street cial circumstances which may have contriband Coughlin stores upon he terms of plain uted to produce it. tiffs' said contract with her. Other material In Jordan, Marsh & Co. v. Patterson et al., facts are stated in the opinion.

67 Conn. 473, 480, 35 Atl. 521, 523, in speak

ing of the special damages recoverable for Curtis Thompson and Arthur D. Warner,

breach of contract, it is said that, speaking for appellant. Jeremiah D. Toomey, Jr., for

generally, they must "be confined to such as appellees.

result from the circumstances which may

reasonably be supposed to have been in the HALL, J. (after stating the facts). Al contemplation of the parties at the time they though the complaint does not expressly al made the contract”; and in Lewis v. Hartlege that the defendant agreed to deliver ford Dredging Co., 68 Conn. 221–236, 35 Atl. possession of the leased premises on the 1st 1127, that special damages which the parof April, it describes a cause of action suf ties ought in reason to have foreseen, as the ficient, in the absence of a demurrer, to sus probable and direct result of special circumtain a judgment for substantial damages. It stances which were or ought to have been in effect alleges that, in violation of the terms known to the defendant, may be recovered. of the lease made a part of the complaint, The rule as thus stated accords with that the defendant refused to put the plaintiffs in laid down in Hadley v. Baxendale, 9 Exch. possession of the store. After the default, it 341, that the damages recoverable are "eiwas only necessary for the plaintiffs to prove ther such as may fairly and reasonably be the averments of the complaint as to the ex considered as arising naturally, that is, actent of their damage. The burden rested cording to the usual course of things, from upon the defendant to prove any fact which such breach of contract itself, or such as would show that he was free from any liabil may reasonably be supposed to have been in ity. If he desired, upon the hearing in dam the contemplation of both parties, at the ages, to raise the question of whether a time they made the contract, as the probable wrongful holding over by Harris would re result of the breach of it." lieve the lessor from liability, he should have It may be added that mere notice to a lesgiven notice of that defense; as required by sor of the facts from which special damages section 742, Gen. St. 1902, and should have may arise upon a breach of his contract does proved it. In the absence of a finding that not necessarily render him liable for the Harris' possession after April 1st was wrong special damages which afterwards result ful, and with the burden of proof thus upon

therefrom. To render him so liable, the the defendant, w must regard Harris' pos knowledge of the lessor, or the facts sursession as lawful. The fact that he was rounding the making of the lease, must be rightfully in possession under a verbal lease shown to have been such that it may be fairfrom the defendant does not prevent the ly inferred therefrom that he consented to plaintiffs from recovering substantial dam assume the enlarged responsibility and risk ages. Cohn v. Norton, 57 Conn. 480-490, 18 of such special damages. 1 Sedgwick on Atl. 595, 5 L. R. A. 572.

Damages, sec. 159 (8th Ed.); Wood's Mayne The correct rule of damages in actions of on Damages, sec. 41; Hale on Damages, p.

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62; Booth v. Spuyten Duyvil Rolling Mill Co., locating themselves on Main street, as soon 60 N. Y. 487; Snell v. Cottingham, 72 Ill. as opportunity afforded. They chose the lat161.

ter course. It was a proper and reasonable Other rules of law applicable to the case one, if they were determined to carry on busiat bar are that the plaintiffs may recover ness in Bridgeport in the future; the reasonable cost of steps necessarily taken that the defendant must be held to have unin order to protect themselves from loss, or derstood that damage would result if the to diminish the loss, from proper acts of plaintiffs could not use the fixtures (ordered preparation to occupy the defendant's store for the defendant's store) in the Curtis store, (1 Sutherland on Damages, p. 148); that the or if, in order to get an equally but no more plaintiff's assumed the risk of loss from all desirable store on Main street, they had to liabilities not incurred by them in good faith purchase additional fixtures or pay a bonus (Cohn v. Norton, 57 Conn. 480 493, 18 Atl. to get possession;" that "in the natural 595, 5 L. R. A. 572); that all damages which course of the events, in order to obtain the they could have avoided by the use of due object of their lease-the use of a store on diligence are not to be regarded as the prox Main street, and as near the Curtis store as imate results of the defendant's acts (Jordan, possible-the plaintiffs were driven almost Marsh & Co. v. Patterson et al., 67 Conn. necessarily to this expenditure,” that is, of 473-481, 35 Atl. 521); and that those injuries the $800, for additional fixtures for the and losses, for which a recovery is sought, Coughlin store; that "in July the plaintiffs, not necessarily resulting from the defend- finding the State street store unsuitable for ant's wrongful act, but following it as nat their business, and in pursuance of their orig. ural and proximate consequences, and term inal purpose of obtaining a store on Main ed special damages, must be specially alleg. street," leased the Coughlin store; and ed, so that the defendant may be apprised of again, that one of the steps taken to protect the nature of the loss actually sustained, and themselves from loss was “the hiring of the be prepared to go into the inquiry (Bristol Coughlin store, which was in pursuance of Mfg. Co. v. Gridley, 28 Conn, 211, 212; Lewis their original purpose of establishing a busiv. Hartford Dredging Co., 68 Conn. 221-236, ness in that section of the city." 35 Atl. 1127).

It is true that the trial court has found that The items of damage allowed by the trial the plaintiffs “were justified in ordering the court in the present case, and which go to fixtures (for defendant's store), and in some make up the judgment of $1,540, are the $800 reasonable preparation for the opening of paid by the plaintiffs for the alterations and business in the Curtis store on the 1st day of fixtures for the Coughlin store, and the $400 | April, by the purchase and reservation of paid for rent of the State street store after stock, and in a small amount of manufacture the plaintiffs ceased to occupy it. The de

and that "their steps taken to fendant objected to proof of these items of protect themselves from loss, growing out of damage, and afterwards claimed that they reasonable preparations,

including should not be allowed, and further claimed the hiring, fitting, and vacating the State that there could be no recovery for loss by street store, and the hiring and fitting up of reason of expenses incurred after the plain- | the Coughlin store, were reasonable and tiffs were informed of the claims of Harris proper.” But the record does not state that and of his refusal to vacate the defendant's the plaintiffs were justified in sending the store on the 1st of April.

$3,371 worth of goods to the State street From the fact that the judgment is based store in March, after, as the court finds, the upon these two items, as well as from cer doubt arose as to the possession of the detain rulings and statements of the trial court fendant's store, nor is it found what part, if appearing upon the record, it would seem

any, of these goods were purchased or manuthat damages were assessed upon the theory factured after the 9th of February, when the that the plaintiffs, independently of their lease from the defendant was executed, nor right to recover for any loss they may have does it clearly appear what loss, if any, the sustained by reason of preparations made to plaintiffs sustained by having purchased the occupy the defendant's store, were entitled, fixtures for the defendant's store, nor indeed upon the facts alleged and found, to a judg- whether they were in fact purchased before ment for the loss growing out of the expense the 26th of February. Evidently it is not incurred by them in procuring another store, meant by this part of the finding that the enequally suitable with the defendant's, in tire expense of biring, fitting, and using the which to conduct the millinery business. State street and Coughlin stores was reason.

As indicating such view of the case, the able and proper in order to protect the plaintrial court says that the plaintiffs were re tiffs aga est loss from preparations to occupy quired to "give up entirely their purpose of the defendant's store on April 1st, since but establishing a business in Bridgeport for a part of such expense is allowed to the the present, and immediately dispose of their plaintiffs by the judgment, and since it clearstock of goods or dispose of and arrange to ly appears from other portions of the findiug protect themselves in respect to the fixtures that these stores were rented and used by on hand or ordered, or they might pursue the plaintiffs largely, if not wholly, for a dif. such a course as they did, for the purpose of ferent purpose, namely, for carrying out their

original design of conducting a retail millin or manufactured for the Bridgeport business ery business in Bridgeport.

before April 1st. If the plaintiffs did not The plaintiffs are not entitled to recover in fact make any preparations for occupying expenses incurred by them in procuring an the defendant's store for the expense of other store merely for the purpose of carry which he can be held liable, they cannot, asing out their original plan of opening a millin suining the value of defendant's store to have ery business in Bridgeport. They cannot been no greater than the rent agreed to be recover them as general damages because, by paid under these allegations, recover for any the premises of an ordinary lease, the lessor expense incurred in procuring another store does not undertake, upon failure to deliver in which to conduct their business. By this possession, to furnish other premises equally we do not mean that the plaintiffs may not well adapted to the lessee's use at an ex recover, under the allegations of the compense beyond the market value of the leased plaint, such part of the expense of carrying premises. The limit of the general dam on the millinery business in Bridgeport as ages which a lessee may recover, who is was necessarily incurred by them in protectthus denied possession, is the actual rental ing themselves from loss from proper exvalue of the leased premises for the term, penses of preparation to occupy defendant's and not the amount which the lessee under store. special circumstances may have been com Assuming that the actual rental value of pelled to pay to obtain similar premises. If the defendant's store was no greater than such actual value of the term is no greater the rent agreed to be paid, the real question than the rent agreed to be paid, the general then to be decided upon the hearing in dani. damages, in the absence of any payment of ages was, what loss, for which the defend. rent, are nominal, but, if rent has been paid, ant can be held liable, did the plaintiffs susthen the amount of the rent so paid. If such tain by reason of their alleged preparations actual value is greater than the rent agreed to occupy the defendant's store? and not, to be paid, the general damages are the dif- . what expense did they incur in order to proference between the agreed rent and such cure another store equally as good? actual value, plus the amount of rent actual Upon the record before us, the judgment ly paid.

rendered cannot stand as a measure of the Nor can the plaintiffs recover as special loss resulting from such preparations: First, damages the expense incurred in procuring because, as we have said, it seems to be bas. another store merely for the purpose of es ed upon, or to include a different loss than tablishing a business in Bridgeport: First, that resulting from, such preparation; and, because, from the mere fact that when the second, because it does not clearly appear lease was executed by the defendant he was that there were acts of preparation to occupy informed that the plaintiffs intended to es the defendant's store, and losses resulting tablish a millinery business in Bridgeport, therefrom, which would render the defend. and had made certain purchases of goods ant liable to the amount of the judgment rentherefor, it cannot reasonably be supposed

dered. that the defendant contemplated, as probable In his memorandum of decision the trial results of a breach of his contract, and as judge says "the plaintiffs have been permitrisks assumed by him, that the plaintiffs ted' to give in evidence every special circummight sustain losses by renting, merely for stance from which they thought a claim for the purpose of establishing such business in special damages might arise." While the Bridgeport, an unsuitable store on State finding states that the plaintiffs proved a destreet, paying $400 rent therefor after they preciation in value of goods not sent to had ceased to occupy it, and hiring another Bridgeport, and in goods manufactured in store on Main street, requiring the expendi- | Bridgeport after the 1st of March, and that ture of over $1,600 for fixtures, $800 worth there was evidence tending to show a loss of of which would be valueless to the plaintiffs 25 per cent. on the $3,371 worth of goods beyond rendering such store equally suitable sent to the State street store, and that it may with the defendant's for carrying on such be assumed that the fixtures purchased for millinery business; and, second, because it is the defendant's store could have been sold not alleged in the complaint that the plain for 60 per cent. of their cost, the judgment is tiffs suffered any loss or incurred any expense not based on these losses. And while it is in procuring another store equally suitable found that the hiring, fitting, and vacating with the defendant's in which to carry on the State street store, and the hiring and their projected millinery business, or that fitting up of the Coughlin store, were reasonthey did procure such a store. In fact, such able and proper steps to protect the plaintiffs suitable store was not obtained until after from loss growing out of reasonable preparathe present suit was brought.

The only spe

tions, and that the plaintiffs acted in good cial damages alleged in the complaint are faith in making preparations for their spring those arising from expenses incurred by the opening, and in steps taken to facilitate the plaintiffs in protecting themselves from loss disposal of their goods and protect themfrom preparations made prior to April 1st selves from loss, it nowhere appears what to occupy the defendant's store, and from de the court regarded as reasonable acts of preciation in the value of goods purchased preparation-excepting, perhaps, the purchase

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of the ixtures for the defendant's store, the so kept or shipped; as well as any loss which cost of which are not included in the judg may have been sustained by the plaintiffs by ment-nor just when the acts, which the the purchase or manufacture of such amount court may have considered reasonable acts of goods, between those dates, for use in the of preparation, were performed.

defendant's store, as it may be shown the Again, certain of the expenses incurred defendant, when he signed the lease, knew and losses sustained which are described in or should have apprehended would be so purthe finding cannot properly be regarded as chased or manufactured. And so, too, there arising from acts of preparation to occupy may be an allowance for any other loss, althe defendant's store, and for which the de leged in the complaint, caused by any act fendant can be held responsible.

done, or expense incurred, by the plaintiffs The plaintiffs cannot recover for any loss

between said dates in making proper prepsustained by reason of expense incurred aft arations to occupy the defendant's store, er February 26th to occupy the defendant's which loss, upon the facts, it may reasonably store. On that day they were fully informed be supposed the defendant, when he signed as to the claims of Harris; that he refused the lease, contemplated as the probable reto surrender possession on the 1st of April, sult of a breach of his contract. and that their only chance of obtaining pos If any part of the expense of renting, fitsession later depended upon the determina ting up, and using the State street and tion, by an action of summary process, of Coughlin stores after February 26th, or of the disputed question of whether Harris had conducting a millinery business in them afta verbal lease. With these facts before them, er that date, was necessarily incurred in they were notified in writing by the defend protecting the plaintiffs against loss from ant's counsel that, while the defendant would the proper acts of preparation between Febdo what he could to get possession, they ruary 9th and February 26th, above describmust take note of the situation. The only ed, the loss occasioned by such expense fair interpretation of this language, under

should be allowed; but, in determining the the circumstances then existing, is that the loss sustained by the purchase of any ixplaintiffs could no longer act in reliance up tures for that purpose, the value of such on the agreement that they should have pos fixtures left on hand should be deducted session on April 1st. In Cohn y. Norton, from the proper cost thereof, and no part of supra, it was said, “Again, if these liabilities any expense incurred by the plaintiffs merewere incurred after the plaintiff knew that ly for the purpose of providing themselves it was doubtful whether he could have the with another store equally well adapted with store,

they were incurred in bad the defendant's for the millinery business faith, and he assumed the entire risk.” In should be allowed. that case, as in this, the plaintiff', after he As the damages do not appear to have been had learned the facts, was informed that the assessed in accordance with the rules a bove defendant would do all he could to get pos stated, the case is remanded for a reassesssession.

ment of damages. The other Judges concurIt does not appear that the defendant red. made any such promise to deliver possession after April 1st as would have justified the

(69 N. J. L. 60) plaintiffs in incurring, after February 26th,

PAGININI V. NORTH JERSEY ST. RY. any liabilities, at the defendant's risk, with

CO. the view of obtaining possession at such later date, nor is it alleged in the complaint

(Supreme Court of New Jersey. Feb. 24, 1903.) that the defendant made any such promise,

CARRIERS-INJURY TO PASSENGERS-NEG

LIGENCE. or that the plaintiffs suffered loss by reason of the breach of any such promise.

1. It is not negligence per se for a motor

man to open the gate on the front platform of The plaintiffs should not be allowed for a trolley car before the car has come to a full loss sustained by depreciation in value upon stop. all the goods which they had on hand before (Syllabus by the Court.) obtaining the lease from the defendant. The Error to circuit court, Hudson county. defendant was not a party to the purchase Action by Michael Paginini against the of such goods. It is not alleged that he

North Jersey Street Railway Company. Judgknew of their purchase, nor is it found that

ment for plaintiff, and defendant brings erhe had any other information concerning

ror. Reversed. them than that the plaintiffs had made cer

Argued November term, 1902, before the tain purchases in Europe. There may, how CHIEF JUSTICE and VAN SYCKEL, ever, be allowed the loss, if any, caused by

FORT, and PITNEY, JJ. reserving or keeping, from February 9th to February 26th, for use in the defendant's

Vredenburgh, Wall & Van Winkle, for store, or by shipping to Bridgeport for that plaintiff in error. Hudspeth & Puster, for

defendant in error. purpose between those dates, such portion of those goods as it may be shown the defendant, when he signed the lease, knew or FORT, J. The defendant in error had a should in reason have apprehended would be verdict in the Hudson circuit for alleged in

a

juries resulting from his being thrown from ligence, could recover. We are unable to give the front step of a car of the plaintiff in er assent to this view of the law. It cannot be ror. The injury resulted while he was alight. said, as a matter of law, that it was negliing from a moving car. His claim was that gence per se for the motorman to open the the car upon which he was had passed the gate before the car came to a full stop; nor street at which he was expecting to be dis can it be said that the opening of a gate by charged; that he went forward, because of a motorman while the car is moving is an the crowded condition of the car, to the mo invitation to a passenger to alight from a torman, and asked why he had not stopped; moving car. This would no more be true that the motorman made no reply, but pro than would the act of a conductor in opening ceeded to bring the car to a stop, and opened the rear door of the car, as it was about to, the gate for him to alight; that he then rest come to a street and stop, be an invitation ed one foot upon the step and the other upon for a passenger to get up and step off the the platform, holding the gate with one hand car by the rear platform while the car was and his violin case with the other; that, still in motion. Passengers take obvious thereupon, the motorman, instead of stop risks. Coleman v. Second Avenue R. R. Co., ping, suddenly put on the power, and he was 114 N. Y. 609, 21 N. E. 1064. Because a thrown from the car and injured. This was motorman opens à gate before a car comes his testimony. There was a motion to non to a stop, that will not excuse a person in suit, but this, we think, was rightly refused. jumping off a car before it comes to a stop. Another error is assigned upon an exception The mere opening of the gate will not raise taken to the refusal of the court to charge presumption of actionable negligence the following request of the defendant, as against the defendant company. well as to what the court did charge, viz.: For these errors of the trial court, the "That it was negligence on the part of the judgment is reversed, and a venire de novo plaintiff to step on the front step of this car awarded. before it had stopped, and, if that contributed to the accident, he cannot recover.” This

(69 N. J. L. 182) is what the court said in charging the jury

NEW YORK & N. J. TEL. 00. v, CON. on this request: “That is true, gentlemen.

NOLLY. He could not step upon the front step of the car until after it had stopped, unless some

(Supreme Court of New Jersey. Feb. 24, body opened the gate. He certainly knew

1903.) whether the motorman opened the gate. If

APPEAL-REVIEW. the motorman opened the gate, or any one in

1. This court will not review the decisions of authority upon that car opened the gate, and

district courts upon questions of fact. It can

only look to see if there is any legal evidence he stepped down, why, it would be a negli

upon which the judgment might be based. gent act upon the part of the company-if 2. In the present case the evidence was held the motorman opened the gate, it would be

sufficient, under this rule, to support the find

ing and judgment of the court below. a negligent act.”

(Syllabus by the Court.) It seems impossible to sustain this charge and uphold the verdict. It cannot be but that

Certiorari to First district court of Jersey the jury received the impression from this

City. language that, from the mere fact that the

Certiorari by the state, on the prosecution motorman opened the gate, there was a neg.

of Patrick Connolly, against the New York ligent act on the part of the defendant com

& New Jersey Telephone Company to review pany. This conclusion is irresistible, when

a judgment. Affirmed. taken in connection with some of the state

Argued February term, 1903, before DIX. ments previously uttered by the judge in the

ON and HENDRICKSON, JJ. charge. He had already said: “(a) If that Randolph Perkins, for plaintiff in certiois true, gentlemen--if the motorman before rari. Corbin & Corbin, for defendant. that car came to a stop opened the gatethen, by his evidence, he violated one of the HENDRICKSON, J. The plaintiff in cerrules of the company, and he was negligent tiorari has brought up for review the judgin opening the gate and allowing the man to ment of the First district court of the city of get off before the car stopped.” “(b) Did the Jersey City, recovered against him by the motorman open that gate and thereby invite defendant company for damages by the cutthe passenger to alight while this car was in ting of its subway cable at the junction of motion, or did some one else?".

Grand street and Pacific avenue, in that Taking all these statements of the court city. The plaintiff and one Van Keuren together, it must appear that what the court were engaged, with about 60 men in their told the jury was that it was negligence for employ, laying along Grand Street a sixthe motorman to open the gate—that it foot sewer, and the allegation is that on or amounted to an invitation for the plaintiff to about August 6, 1901, while digging out the get off while the car was in motion-and that sewer trench, some of the men thus employed, such negligence was imputable to the defend by means of picks with which they were ant company, and that, as a matter of law, working, cut through the plank covering and the plaintiff, being, of course, free from neg the foot square wooden duct below it con

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