Tuttle v. Hannegan

4 Daly 92

Opinion

By the Court.

Footnotes

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*—Joseph F. Daly, J.

—The proof of damage given by plaintiffs on the trial was admissible; the loss of customers and loss' of daily profits was the direct result of the defendant’s breach of his agreement, that he would not supply milk to the customers on the milk route he had sold to the plaintiffs. The defendant argues that the correct rule of damage would be the difference between the contract price at which the defendant sold the property, and its actual value after the breach. It might well be that it was worth far more than the defendant sold it for; but, if so, the plaintiffs were entitled to the benefit of their bargain, and the defendant has no right to reduce the value of the property—by interfering with it, taking away customers, &c.—down to a sum equal to the contract price. The verdict rendered by the jury, of $492 75, is less than, by some views of the testimony, might have been found as the loss sustained by plaintiffs, and, therefore, cannot be set aside as unwarranted by the evidence. „

As to the admission in evidence of the writing at folio 37 of .the case, the complaint sets forth, as the basis of the action, a promise or agreement, which is substantially the same as that contained in the writing, under the form of a condition of a bond. The writing itself is not a bond, and is of no higher character than a simple agreement. Not being under seal, it cannot he regarded as an instrument of higher character into which the parol contract of the parties was merged. The plaintiffs were not bound, therefore, to bring their action upon it, but had the right to plead the parol agreement, and offer the writing in evidence to sustain their case. The excep-1 tions to its admission, and to the admission of evidence after it was in the case, were not well taken. It is true that the writing showed an agreement with the plaintiff, Martin, alone; but the answer admits the sale of the property to the plaintiffs— the horse and appurtenances and milk route; and the evidence shows that Martin acted for the partnership, and he and the other plaintiff as the real parties in interest, had the right to bring the action. Finally, the writing itself purported to be a bond in the penalty of $1,000 ; and the plaintiffs claimed no more than that sum as damages, and recovered much less.

The judgment should be affirmed, with costs.

Judgment affirmed.

Present, Daly, Ch. J., Larremore and J. F. Daly, JJ.