The defendant agreed with the plaintiff, that the defendant's steamboat the O. Ellsworth, Captain Atwood, should take in tow from New-York to Albany, or as far as the ice would permit, the plaintiff's canal boat, at the risk of the master and owner thereof. The canal boat was towed as far up the Hudson river as Coxsackie, 22 miles below Albany, and there left, for the alledged reason that she could not safely be taken farther on account of the floating ice in the river.
The judge charged the jury that the words in the contract, "as far as the ice will permit," had reference to a physical impossibility occasioned by the ice, "and that the defendant was bound to take up the canal boat if it was physically possible; that is, if other boats were and could be taken up." The plaintiff excepted to this part of the charge. We do not think the law was given accurately to the jury. The defendant, by his contract, was required to tow the canal boat as far up the river as he could without great and imminent hazard from the ice; such hazard as no prudent man would willingly encounter: and there his duty ended; although it might have been physically possible to have continued to Albany. The judge's explanation of what he meant by physical possibility is not satisfactory; because other boats may have been towed to Albany at a hazard which the contract with the plaintiff did not require the defendant to incur in proceeding with the plaintiff's canal boat.
The hazard which would have excused the defendant from taking the canal boat to Albany was, however, hazard or danger to the steamboat — not to the canal boat. The latter was to have been towed at the risk of the master and owner: and it was in evidence that when the master of the steamboat refused at Coxsackie to take the canal boat further up the river, the *Page 132 plaintiff told him the canal boat must go on, and he would risk all damages. Danger to the canal boat therefore was to be laid out of the question in determining what the defendant's duty was in taking it to Albany.
The judge further charged, that if Capt. Atwood was right in leaving the canal boat at Coxsackie. he was bound to return there and tow her to Albany without any unnecessary delay. We think the judge was mistaken in this also. The defendant contracted only for services to be rendered at a single trip; and this trip was to terminate in case of obstruction by the ice, wherever the obstruction was met with. The plaintiff's duty ceased therefore at the end of the trip; and this was at Coxsackie, if the obstruction there was sufficient to justify the defendant in leaving the canal boat. His going back for other boats and towing them up on the following day, was evidence tending to show that the defendant's boat might have been towed up at that time; but if the obstruction of the navigation was such that the trip was fairly terminated at Coxsackie, these acts were not evidence that the defendant had any further duty to perform under the contract.
The steamboat had several other canal boats in tow at the same time with the plaintiff's. But the defendant's contract with the plaintiff was absolute, and without reference to other boats, or to the defendant's duty as to them. He can not therefore excuse the breach of his contract with the plaintiff on the ground that he had made so many other contracts of the same kind that he could not perform them all.
With respect to the damages, the general rule in questions of this nature is, that the plaintiff is entitled to recover as a recompense for his injury all the damages which are the natural and proximate consequence of the act complained of. (2 Greenl.Ev. § 256.) Those which necessarily result from the injury are termed general damages, and may be shown under the general allegation of damages at the end of the declaration. But such damages as are the natural, although not the necessary result of the injury, are termed special damages, and *Page 133 must be stated in the declaration to prevent a surprise upon the defendant; and being so stated may be recovered.
The defendant contracted to tow the plaintiff's boat up the river at a season when there was not only an apprehension of an interruption from the ice, but when there was a probability that the river would soon be frozen up and the navigation entirely closed. The plaintiff complained that he was detained eight days at Coxsackie on expense, and that when he finally arrived at Albany, and before he could discharge her cargo, he was in consequence of the detention, shut in there by the ice and compelled to keep his boat there during the winter, instead of having her towed down the river, as otherwise might have been done.
The judge charged that if the plaintiff was entitled to recover at all, he ought to be allowed the expenses occasioned by his detention of eight days at Coxsackie. There was no error in this. The detention was the immediate consequence of the breach of the defendant's contract. At that place and at that season it appeared to be impossible at any price to procure a steamboat, forthwith to take the canal boat to Albany. The plaintiff used his best endeavors for that purpose without effect. It would have been imprudent in him to discharge his men while there, and it is evident that they could not be usefully employed in any other business. The expenses incurred while detained at Coxsackie were therefore an unavoidable loss to the plaintiff, and the natural and necessary consequence of the defendant's fault, for which he ought to be answerable.
The judge further charged the jury, that the plaintiff's claim for special damages did not preclude him from resorting to his claim for general damages, presumed by law to result naturally from the injury as proved, and such damages the jury might find from the proof; and that the jury had the right to give such general damages as they supposed to have naturally resulted from the breach of the contract. To all this the defendant excepted. He requested the judge to charge that there was no proof of any general damages excepting nominal dam ages, nor of any other damages excepting the several items claimed by the plaintiff. *Page 134
Putting the matter of these exceptions in closer connection it amounts to this; that the jury were advised that they were authorized to find general damages beyond a nominal amount; and that there was proof in the case to justify such finding. This I think was erroneous. The plaintiff's boat was towed to Albany free of expense after eight days' detention at Coxsackie. The contract was performed but not in time. All claims for actual damage arose from detention. They are all properly stated in the declaration as special damages, and the plaintiff should have been confined in his recovery of actual damages to the damages specially claimed.
The judge excluded from the consideration of the jury the plaintiff's claim for keeping the canal boat at Albany during the winter. It may perhaps be questionable whether that decision was not too favorable for the defendant. (Blanchard v. Ely, 21Wend. 350.) That question however is not to be settled here.
Judgment reversed and new trial ordered.