By the Court.
This is an action for an alleged breach of a bond given by defendants to plaintiff.
The condition of the bond is as follows: “ The pavement to be kept in thorough repair by the said company, within the tracks, and three feet on each side thereof, with the best water stone, under the direction of such competent authority as the common council may designate.”
The breach was the alleged failure of the company to keep the pavement in repair as provided, whereby one Ferdinand Meier was injured to the damage of plaintiff in the amount of a certain judgment recovered by Meier against it in a suit which the company had been notified to defend.
The complaint claimed the amount paid by the city on said judgment, as the measure of damages. The point that no damage was shown was not taken at the trial, and should not be considered here. Had the point been taken when the • plaintiff rested, a motion might have been made to put in more evidence; but there was evidence in the case that the defendants had not kept the street in repair as agreed, and the plaintiff, if there had been a breach, was at least entitled to nominal damages.
The point upon which the case was decided at the trial, was that no breach had been proved, as the plaintiff did not prove as matter of fact any designation of competent authority under whose direction the pavement was to' be kept in repair. The legal question is, [364]*364whether this clause is a condition precedent to the obligation of the defendants to'make any repairs ?
It cannot be denied that the agreement was a sufficient authority for the defendant to enter upon and use the streets for the purposes of their charter, without being liable to the city as trespassers. They did so enter upon and use the streets, and exhibited no fear of liability for their acts until it became a convenient excuse for their failure to perform the consideration for which their license so to use the streets was granted.
' In one view it is immaterial whether or not the clause providing for a designation of competent authority was a condition precedent to the defendants keeping the streets in repair. It was a condition that could be waived; and if the acts of both parties were such that a waiver should have been inferred as matter of law prior to the alleged. breach, it was not competent for the defendants in this suit to set up the clause as a defense.
The bond would become changed by tacit agreement, acted upon by both parties, and neither party could return to- and exact the original terms, without reasonable notice of its intention so to do.
I think it is clear that the defendants waived the clause requiring a designation, by entering upon, using and repairing the streets from the date of the bond t¿ the day of trial.
■The plaintiff waived it by permitting the defendants so to enter upon, use and repair the streets without making any designation; and thus both parties acquiesced for several years and until the commencement of .this suit.
The defendants, by accepting the benefits of the agreement, and going upon the streets and repairing them, gave the plaintiff to understand that they did not require any authority to be designated under whose direction they should do the work; and they are now estopped from setting up, in defense of this suit, laches [365]*365on the part of the plaintiff, which were induced by their own conduct.
It is a fair construction of the contract between the parties, that the clause, “under whose direction, &c., .....” was a right secured to the plaintiff, which it could avail ■ itself of or not, at its option, irrespective of any claim the defendants might make in that behalf.
The city was at liberty to waive the right to designate any competent authority, without any consent on the part of the defendants. . It was an additional burden imposed on the defendants. They were not only to keep said streets in repair, but were to do so under the direction of any competent authority designated by the plaintiff.'
The waiving of this right on the part of the plaintiff being in favor of the defendants, they must be presumed to have accepted such waiver and acceded thereto for several years and until the date of the complaint.
The case of Combe v. Greene, 11 Mees. & W., 480, cited by defendants, is not analogous to the case at bar. In that case the defendant agreed to expend one hundred pounds upon improvements in a house, under the direction of a surveyor to be appointed by the plaintiff. The defendant could not know where or how to expend the money until the surveyor was appointed. The work was not described, and the court held, construing- the contract to give effect to the intent of the parties, that the appointment of a surveyor was a condition precedent; but here the work was described ; the time when and the manner how it was to be done, was stipulated in the contract.
The defendants were to keep the streets in repair at all times within the tracks and three feet on each side thereof with the best water stone. The defendants not only knew exactly what they were to do under the contract, but how and when they were to do it. 7'
[366]*366The substance of the contract on the part of defendants was to keep the pavement at all times in repair, and not to do work on the pavement when directed by city authorities; this obligation became operative at all times and under all circumstances, whenever the pavement got out of repair, and the qualification that the work of repairing was to be done under the plaintiff’s authority related only to the manner of doing the work, and could not affect the time of doing it, in the absence of a positive restriction not to do it at a particular time.
The contract must be construed so as to carry out the intention of the parties.
In order to do this, the court can take into consideration all the surrounding circumstances. A contract riill not be so construed as to nullify it if it can be sustained by any reasonable construction.
To judge correctly the intention of the parties to this contract, it must be remembered that by it the city conveyed to the defendants a right of great value, and that the only material benefit the city was-to receive therefor wa,s-the repair of the streets by defendants.
It cannot be presumed that the city intended to grant the right for nothing, nor that the defendants expected to receive it without some equivalent.
But as there was a superintendent of streets appointed by law, and as the common council has no power to designate a person as anticipated by the contract, the construction contended for by defendants would relieve them from all liability. This cannot have been the intention of the parties, and the court must seek for some construction that will not do violence to reason.
The court must give effect to the contract as far as possible. „
There is no reason why defendants should not be held responsible for their failure to make the repairs.
The measure of damages is that»contended for by plaintiff. The general rule is that the party injured by the breach of a contract can recover all the damage he [367]*367can prove himself to have sustained. This is qualified in.
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By the Court.
This is an action for an alleged breach of a bond given by defendants to plaintiff.
The condition of the bond is as follows: “ The pavement to be kept in thorough repair by the said company, within the tracks, and three feet on each side thereof, with the best water stone, under the direction of such competent authority as the common council may designate.”
The breach was the alleged failure of the company to keep the pavement in repair as provided, whereby one Ferdinand Meier was injured to the damage of plaintiff in the amount of a certain judgment recovered by Meier against it in a suit which the company had been notified to defend.
The complaint claimed the amount paid by the city on said judgment, as the measure of damages. The point that no damage was shown was not taken at the trial, and should not be considered here. Had the point been taken when the • plaintiff rested, a motion might have been made to put in more evidence; but there was evidence in the case that the defendants had not kept the street in repair as agreed, and the plaintiff, if there had been a breach, was at least entitled to nominal damages.
The point upon which the case was decided at the trial, was that no breach had been proved, as the plaintiff did not prove as matter of fact any designation of competent authority under whose direction the pavement was to' be kept in repair. The legal question is, [364]*364whether this clause is a condition precedent to the obligation of the defendants to'make any repairs ?
It cannot be denied that the agreement was a sufficient authority for the defendant to enter upon and use the streets for the purposes of their charter, without being liable to the city as trespassers. They did so enter upon and use the streets, and exhibited no fear of liability for their acts until it became a convenient excuse for their failure to perform the consideration for which their license so to use the streets was granted.
' In one view it is immaterial whether or not the clause providing for a designation of competent authority was a condition precedent to the defendants keeping the streets in repair. It was a condition that could be waived; and if the acts of both parties were such that a waiver should have been inferred as matter of law prior to the alleged. breach, it was not competent for the defendants in this suit to set up the clause as a defense.
The bond would become changed by tacit agreement, acted upon by both parties, and neither party could return to- and exact the original terms, without reasonable notice of its intention so to do.
I think it is clear that the defendants waived the clause requiring a designation, by entering upon, using and repairing the streets from the date of the bond t¿ the day of trial.
■The plaintiff waived it by permitting the defendants so to enter upon, use and repair the streets without making any designation; and thus both parties acquiesced for several years and until the commencement of .this suit.
The defendants, by accepting the benefits of the agreement, and going upon the streets and repairing them, gave the plaintiff to understand that they did not require any authority to be designated under whose direction they should do the work; and they are now estopped from setting up, in defense of this suit, laches [365]*365on the part of the plaintiff, which were induced by their own conduct.
It is a fair construction of the contract between the parties, that the clause, “under whose direction, &c., .....” was a right secured to the plaintiff, which it could avail ■ itself of or not, at its option, irrespective of any claim the defendants might make in that behalf.
The city was at liberty to waive the right to designate any competent authority, without any consent on the part of the defendants. . It was an additional burden imposed on the defendants. They were not only to keep said streets in repair, but were to do so under the direction of any competent authority designated by the plaintiff.'
The waiving of this right on the part of the plaintiff being in favor of the defendants, they must be presumed to have accepted such waiver and acceded thereto for several years and until the date of the complaint.
The case of Combe v. Greene, 11 Mees. & W., 480, cited by defendants, is not analogous to the case at bar. In that case the defendant agreed to expend one hundred pounds upon improvements in a house, under the direction of a surveyor to be appointed by the plaintiff. The defendant could not know where or how to expend the money until the surveyor was appointed. The work was not described, and the court held, construing- the contract to give effect to the intent of the parties, that the appointment of a surveyor was a condition precedent; but here the work was described ; the time when and the manner how it was to be done, was stipulated in the contract.
The defendants were to keep the streets in repair at all times within the tracks and three feet on each side thereof with the best water stone. The defendants not only knew exactly what they were to do under the contract, but how and when they were to do it. 7'
[366]*366The substance of the contract on the part of defendants was to keep the pavement at all times in repair, and not to do work on the pavement when directed by city authorities; this obligation became operative at all times and under all circumstances, whenever the pavement got out of repair, and the qualification that the work of repairing was to be done under the plaintiff’s authority related only to the manner of doing the work, and could not affect the time of doing it, in the absence of a positive restriction not to do it at a particular time.
The contract must be construed so as to carry out the intention of the parties.
In order to do this, the court can take into consideration all the surrounding circumstances. A contract riill not be so construed as to nullify it if it can be sustained by any reasonable construction.
To judge correctly the intention of the parties to this contract, it must be remembered that by it the city conveyed to the defendants a right of great value, and that the only material benefit the city was-to receive therefor wa,s-the repair of the streets by defendants.
It cannot be presumed that the city intended to grant the right for nothing, nor that the defendants expected to receive it without some equivalent.
But as there was a superintendent of streets appointed by law, and as the common council has no power to designate a person as anticipated by the contract, the construction contended for by defendants would relieve them from all liability. This cannot have been the intention of the parties, and the court must seek for some construction that will not do violence to reason.
The court must give effect to the contract as far as possible. „
There is no reason why defendants should not be held responsible for their failure to make the repairs.
The measure of damages is that»contended for by plaintiff. The general rule is that the party injured by the breach of a contract can recover all the damage he [367]*367can prove himself to have sustained. This is qualified in. cases arising upon contract, by an- exception to the rule, to the effect that the damage must be such as might naturally have been expected to follow the breach (Griffin v. Colver, 16 N. Y., 489).
In this case the natural and ordinary consequences of a breach of defendants’ contract to repair was the injury to Meier and the recovery of damages therefor. Recovery and payments of such judgments as that recovered against the city, might naturally have been expected to follow the breach of defendants’ contract.
The city should recover the amount paid by them upon the j udgment. As they notified the railroad company to defend the suit brought against the city, and the company failed to do so, the éxpenses of defending the suit are also a proper item in the recovery here.
It might be otherwise, were it not that a judgment of the court was necessary to fix the amount of liability before the city could safely pay.
Nor can it be claimed that these damages are too remote. Defendants’ negligence caused the injury, and the injury occasioned the judgment.
The question is not what was the immediate cause of the loss complained of, but what was the efficient, procuring, predominating cause, upon a comparison of all the facts % The law, though it does not seek for the cause of causes, is sedulous to find the true cause, and distinguish that from its incidents and consequences.
A familiar illustration is afforded by cases of insurance against fire.
The property may be destroyed by the direct means of water used to extinguish the fire, or injured by removal," or stolen by reason of the exposure caused by the fire. Yet the fire is the efficient cause, and the insurer must bear the loss.
In Siordet v. Hall (4 Bing., 607), the immediate cause of the injury was escape of steam from a boiler—a prior cause was the cracking of the boiler, still again caused by [368]*368frost. But the court went back of these intervening causes to the efficient cause—the captain’s negligence in improperly filling the boiler with water.
In the case at bar, the loss sustained by the city is less remote from the procuring cause than in the cases cited.
The city were not bound as against the defendants to keep the streets in repair; on the other hand, defendants owed that duty to the city—and cannot complain of the city for not doing what they had stipulated to do themselves. As against the defendants, the city had a right to presume the street was in repair, and act accordingly.
It is true, the city owed a safe road to travelers, but they had contracted this duty out to defendants, and defendants were bound to indemnify the city against any loss which was the direct-result of their failure to perform their contract.
The natural result of their failure was that such injuries would follow, and such damages be recovered. That was the liability which, as between the parties, was assumed by defendants.
J. F. Barnard, P. J., and Gilbert, J., concurred.
New trial ordered.
Present, J. B. Barnard, P. J., and Pratt and Gilbert, JJ.