The plaintiffs seek to recover a stipulated monthly compensation for furnishing, or being ready to furnish, certain steam power to the defendants, from the first of May to the first of November, 1851. The defendants offered to prove that accidents fatal to human life had resulted from the use of the machinery which supplied the power, both before they had commenced, and after they had ceased, using it. The proposed evidence to that effect was excluded by the learned judge who tried the cause. The defendants’ object was to show a satisfactory reason for abandoning the use of the power, before the time specified in their contract had expired. But they had not alleged that, by way of defense, in their answer; and if they had done so, there is nothing to show that the alleged accidents happened from any cause existing at the time when the machinery was in operation for them. If the accidents had resulted from any previous defect in the machinery, or from the habitual carelessness or mismanagement of the person who had charge of it, at the time when it was operating for the defendants, they should have proved, or offered to prove, those facts, to show the applicability of evidence which was otherwise, and; from any thing that appeared, irrelevant. The evidence was, under the circumstances, properly excluded.
The defendants also offered to prove that they had made contracts with various persons to. sell them saws which might be manufactured by them under their contract, but" which they had been unable to fulfill by reason of the failure of the plaintiffs to •perform their engagements, whereby the defendants had sustained damages; but the learned judge also decided that the *389proposed evidence was inadmissible. The objection to it is, that the damages which it was proposed to prove were too remote. Such as resulted directly from the alleged non-performance by the plaintiffs of the stipulations in the contract, and from that cause only, were provable and allowable; but those which were caused by something out of such contract, as by engagements made by one of the parties with strangers, were indirect, and could not be recouped by the defendants in this suit. Parties, when they enter into contracts, may well be supposed to contemplate the ordinary, (and if I may use the expression here,) natural incidents, either from performance or non-performance. But neither can be supposed to take into consideration any transaction between the other and strangers. All persons should design, when they make engagements, to fulfill them; but unexpected events may transpire which may deprive them of the ability to do so; and few would enter into contracts of any considerable extent as to the subject matter, or time, if they should thereby incidentally assume the responsibility of carrying out other arrangements over which they had no control, and the existence of which was unknown to them. Masterton v. The Mayor, &c. of Brooklyn, (7 Hill, 61,) decides that in awarding damages for the non-performance of an existing contract, the gains or profits of collateral enterprises in which the party claiming them has been induced to engage by relying upon the performance of such contract cannot be included. The chief justice (Nelson) says, “ it has been held that the loss of any speculation or enterprise in which a party may have embarked, relying on the proceeds to be derived from the fulfillment of an existing contract, constitutes no part of the damages to be recovered in case of a breach.” He cites in support of this proposition Clare v. Maynard, (6 Adol. & Ellis, 519;) Walker v. Moore, (10 Barn. & Cress. 416 ;) Cary v. Gruman, (4 Hill, 627;) and Chitty on Cont. 458, 870. The evidence to prove such damages, in this case, was properly excluded.
The defendants do not set up in their answer, as an absolute defense, or at all, that their obligation to pay the monthly installments claimed in this suit, was dependent upon the entire *390performance of each and all of the plaintiff’s engagements during the time for which they became due. If they had done so, the question would have arisen whether such would have been the rational construction of a contract embracing so many particulars—and whether, if it had been, the defendants would not have been precluded from availing themselves of the objection as an absolute and entire bar against the recovery of an installment for any month, by continuing their operations into another. The courts have latterly somewhat relaxed the old rule on the subject of conditions precedent, in cases where it could be done without effecting injustice; probably from a disposition not to deprive a party of all compensation for services rendered and accepted, because the party asking for it may not have fully complied mth his engagements, perhaps in some minute and unimportant particular, and without any intent to omit doing what he had contracted to do. Justice is more effectually insured in such cases by giving to one what his services to another are really worth; deducting all such damages as may have resulted from a breach, by the party seeking compensation, of any part of the contract. The relaxation of the rule extends no farther than to cases where the condition has reference to a matter which is divisible, or possessed of various attributes, where the deficiency in quantity or quality can be ascertained and estimated, and an allowance made for it which shall fully compensate the disappointed party. IT or does it extend to cases where full performance is expressly made a condition precedent. In the case under consideration, there is no direct stipulation to that effect. All that is said as to that is, that “ the parties of the second part agree to pay to the parties of the first part for the said steam power, to be furnished as aforesaid,” at the rate of one hundred dollars per month, at the end of each month. In the case of Ritchie v. Atkinson, (10 Peters, 295,) a ship master had agreed with a freighter to carry a complete cargo of iron and hemp at so much per ton for cash. The master, from some cause for’which he was not answerable, had conveyed but a part, {although a large part,) of a cargo which was received by the freighter. In an action for the compensation, the .objection was *391raised, and very ably argued, that the carriage of a complete cargo was a condition precedent to any obligation to pay any thing; but the court decided that there might be a recovery pro tanto, leaving the master liable for any damages consequent upon the non-fulfillment of his engagement as to the residue.
[Kings General Term, October 3, 1853Barculo, Brown and S. B. Strong, Justices.]
The only defense set up by the defendants in their answer is, that by reason of the non-performance of the plaintiff’s engagement in various particulars they have sustained damages to a large amount which they seek to recoup. As to these, all the admissible evidence offered by them was received; and the question was fully and fairly submitted to the jury. The question as to the dependence or independence of the covenants had no bearing upon the issues raised by the defendants, and actually tried; and if the judge was incorrect, on this point, in what he said to the jury, the error could in no manner have prejudiced the defendants, and should be disregarded in their motion for a new trial. (Shorter v. The People, 2 Comst. 193. The People v. Lohman, 2 Barb. S. C. R. 216.)
There is another reason why the mistake, if any, did not prejudice the defendants. The jury have found, in effect, that the plaintiffs did fully perform their engagements; unless there was, which is not pretended, some breach for which the consequent damages were merely nominal.
The jury would however, I think, have been warranted by the evidence in making some deduction from the plaintiffs’ demand. But the question was fairly submitted to them, and there was not such a preponderance in favor of thé defendants, on the question of recoupment, as to authorize me to disturb the verdict.
The motion for a new trial must be denied, with costs.