Rider v. Pond , 28 Barb. 447 ( 1858 )

By the Court, Davies, P. J.

The plaintiffs seek to recover damages from the defendant for his alleged breach of his contract with them. This action has nothing to do with his failure to perform the contract with Roberts & Co., if any such. failure has occurred; nor is it to recover for any damages which Roberts & Oo. have sustained.

The agreement with the plaintiffs was that he, the defendant, would make a bill of sále to Roberts & Co. on said oil factory, for $10,000, to be advanced to said Roberts & Oo. according -to the agreement, which was, to make the advance to the plaintiffs. Roberts & Co. make no complaint or demand on the defendant to make such bill of sale to them, and how do the plaintiffs show they are damnified by the defendants’ omission to make the bill of sale to Roberts & Co. ? I have looked in vain, through the complaint, for any allegation of injury to them, or any proof that they have sustained any damage by such breach. I do not comprehend how a plaintiff is entitled to recover damages for a breach of an agreement, unless such damage is alleged in the complaint and admitted by the answer, and if, as in this case, it is denied in the answer, without proof of the damage. The rule laid down in Williams v. Benton, (13 Louis. Rep. 404,) and quoted approvingly in Sedgwick on Damages, p. 67, is “ that the damages which a party can recover, on a breach of a contract, are those which are incidental and caused by the breach, and may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.” Row it is manifest that the plain and obvious agreement of these parties was that the bill of sale was to be given to Roberts & Oo. as security for the $10,000 to be advanced by them to the plaintiffs, and the object of the covenant on the part of the defendant was to insure the security to Roberts & Oo., on such advances, which the plaintiffs had agreed to give them when the advance should be made, and not before, or for any other purpose. Shankland, J., in his opinion in the Court of Appeals in this case, says: “These securities in the hands of Roberts & Oo., without the money being advanced upon them, would have been nullities.” Can it be said that the plaintiffs have sustained any damage by the defendant’s not doing an act which would be a nullity P It is not averred or proven that the plaintiffs have been damnified in any way by the breach of the defendant’s contract. If they have received the $10,000 from Boberts & Co., and the latter have not received the security to which they were entitled, it is for them to complain. If the plaintiffs have not received the $10,000, which, it is clear all the parties agreed and contemplated should be paid to them by Boberts & Co., and secured to the latter by the defendants, they should have so averred and proved, and that such failure was caused by the breach of the covenant on the part of the defendant. Then a good cause of action would have been established against him, and the plaintiffs would have been entitled to recover the damages sustained by them.

[New York General Term, November 4, 1858.

Davies, Clerke and Ingraham, Justices.]

We do not see that they have sustained any damage by such omission of the defendants. The motion to dismiss the complaint was properly granted, and the complaint must be dismissed with costs.