Sayer v. Wilstrop

Cochrane, P. J.:

I agree with Mr. Justice Hinman that the complaint alleges a cause of action at law and not in equity. But I go further. I think the complaint determines the theory of damages to which the plaintiff is entitled. It does not purport to set forth the entire contract, but a copy “as to the essential parts thereof is annexed ” thereto without disclosing the various contracting parties, and the allegation of the complaint is that in respect to this contract defendant agreed “ to deliver thereunder the milk of eighteen (18) cows.” The breach of the contract by the defendant is specifically alleged to consist in his failure “ to take to said building pursuant to said agreement the milk of said eighteen cows or of any cows.” The reason assigned in the complaint for an accounting is that the plaintiff “ has no personal knowledge as to how much milk was given by the eighteen cows or their substitutes, * * * or what price was received for the milk of said cows, or of what quality said milk was, or the amount thereof, and all of said facts are peculiarly within the knowledge of said defendant.” The only relief demanded is that the defendant account “ for the proceeds of the milk of eighteen cows ” and that plaintiff have judgment for the amount found due on said accounting. No inference can be drawn from the complaint that there was any failure on the part of any of the contracting parties to perform the contract except on the part of the defendant to deliver the milk of his eighteen cows. The suggestion would occur to no one perusing , the complaint and giving it a most liberal construction that the plaintiff was complaining of the failure to perform the contract by any party thereto other than the defendant or of any failure on his part except in respect to the milk of eighteen cows. It seems safe to say that the plaintiff must, when he framed the complaint, have intended that no other inference should be drawn. He sought damages only for the defendant’s individual nonperformance and without reference to any non-performance by any other party to the contract. That such was .his intention is made more clear from the fact that he brought sixteen separate actions against as many parties to the contract as he claimed had defaulted. It is fundamental that a recovery must be secundum allegata et probata. It is useless, therefore, to discuss various remedies or the damages to which the plaintiff might be entitled under this contract. He by his complaint has fixed the measure of damages and the complaint must, therefore, be our guide in applying such measure of damages. Such measure of damages is the loss of profits which the plaintiff has sustained and will sustain because of the failure to deliver to him the milk of eighteen cows and without reference to any failure to deliver milk by any of the other contracting parties. Viewed in this aspect the problem of damages is not very. difficult or complicated. The plaintiff has his plant and equipment ready to serve all who may become his patrons irrespective of whether or not they signed his contract. Loss or depreciation in the building or plant is not an element of the problem. Special damages are not claimed. Undoubtedly the rule declared in Nash v. Thousand Island Steamboat Co. (123 App. Div. 148) as to future profits applies in this case. But such profits should be limited to the milk of eighteen cows and no more. The simple, question is how much milk would eighteen cows produce during the life of the contract and what would be the profit to the plaintiff for manufacturing into butter or cheese or otherwise handling said milk at “ the ruling price.”

The parties consented to try the question of defendant’s liability before taking up the question of damages. The verdict of the jury establishes the fact of defendant’s liability. The extent of that liability remains to be determined. After the evidence was closed and before the case was submitted to the jury the trial justice stated that it had been agreed between the court and the attorneys to submit to the jury only the question of liability and that if the jury found liability the case would be finished before a referee. To this statement the defendant made no objection. Apparently it expressed the understanding of the court and attorneys on both sides. The silence of the defendant at that time constituted an acquiescence in such a disposition of the case even though there may have been no expressed agreement to that effect. The order of reference recites that it was granted against the opposition of the defendant. The order was granted more than a month after -the trial and the opposition by the defendant therein mentioned must be construed with reference to the attitude which he assumed at the trial. It was too late after the trial to repudiate such attitude. If objection had then been taken the course of the trial might have been different. Nor is it necessary to hold that there was any attempted repudiation of the former acquiescence by the defendant in a reference. The objection specified in the order of reference should be construed, not as an objection to the fact of the reference, but to the kind of reference which was being ordered. The order is objectionable in two respects: First. It directed the referee to take and report the evidence as to damages with his recommendation. The referee took the place of the jury and the order should have directed him to hear and determine the question of damages as a jury would have done. Section 1015 of the Code of Civil Procedure does not apply. (Lindner v. Starin, 128 App. Div. 664, 671.) Second. The order directed the referee to “ take proof of the damages accruing to the plaintiff by reason of the violation of the said contract by any of the subscribers thereto, except said plaintiff, including not only this defendant but all of the subscribers thereto, and to report the same to this court with his recommendation.” For the reasons heretofore stated this provision was clearly erroneous. It introduced into the question of damages elements which under the complaint were entirely foreign thereto.

My conclusion is that the judgment and order of reference should be reversed and a new trial granted only as to the question of damages before a referee to be appointed who shall hear and determine that question, with costs of this appeal to the appellant to abide the event.

All concur, except Hinman, J., concurring in part in separate opinion; Van Kirk, J., not sitting.