Russell v. Giblin

5 N.Y.S. 545, 25 N.Y. St. Rep. 827, 1889 N.Y. Misc. LEXIS 2509

• Court: City of New York Municipal Court
• Decided: May 31, 1889
• Status: Published

Opinion

Per Curiam.

The plaintiff had one of two remedies: (1) He might have supplied the steam himself, and charged the defendant with the expense; or (2) he might have recovered from the defendant the difference in value between the quantity of steam actually supplied and that which was agreed to be furnished. Either of these courses would have furnished a certain and ascertainable measure of damages, and either would have compensated for the breach. The contract was to continue for over five years, and, if any other measure of indemnity were allowed, the damages would continue to grow into proportions exceeding in amount anything either of the parties could ever have contemplated. Such daniages cannot be allowed to accumulate unnecessarily, and must be limited to such as may be fairly supposed to have entered into the contemplation of the parties when they made the contract. They must be such as may naturally be expected to flow from a violation of the contract, and they must be certain, both in their- nature and in respect to the cause from which they proceed. It was the duty of the plaintiff to use ordinary and reasonable care and means to prevent an injury and the consequences of it, and he can only recover for such losses as could not, by such care and means, be avoided. It is the plaintiff’s own fault if he fails to use reasonable efforts, care, and diligence to protect himself from injury or loss; and where he fails so to do he will not be permitted to say that the loss that might have been thus avoided was caused by the wrong of the defendant; for it is against the policy of the law, as well as common principles of justice to permit a party to reap any advantage from his own negligence or want of ordinary care, or from his own wrong, or from his own and another’s neglect or wrong. . Field, Dam. § 126. The plaintiff might have recovered in this case damages for the steam unfurnished, for it diminished the value of the thing he had hired and contracted to pay for; but this is not made an item of damages in his'bill of particulars, which is an amplification of his complaint. He cannot claim one tiling in his bill, and recover for another entirely different. He might have furnished the steam himself, and charged the defendant with the expense, together with such actual loss of time of his employes as could not have been avoided while he was necessarily engaged in the work of fitting up the apparatus. But this he did not attempt to do, and, if the plaintiff is allowed to recover substantial damages for the item contained in his bill of particulars, it means ttiat he .may accumulate damages during the whole term of the lease, which in the end may exceed the rent he agreed to pay, perhaps the value of the building he occupies, for there is no certainty what they will amount to, or where they will end. They are too remote to have ever been contemplated by any one at the time of the making of the contract. The damages claimed did not arise while the plaintiff was in the act of attempting to supply the steam the defendant had failed to furnish, but arose from the idleness of the plaintiff’s employes, or what the plaintiff characterizes in his bill as “total stoppage of work from May 10 to June 15,1886, (31 days.)” We find no warrant in the law for charging these expenses to the defendant as damages naturally to be expected to flow from the defendant’s breach or partial failure to perform. It is for these reasons, and those expressed in the opinion rendered on a former appeal in this case, (see 8 N. Y. St. Rep. 336,) that we are compelled to affirm the judgment appealed from.