Mitchell v. Heinrich Aeroplane Co. , 158 N.Y.S. 728 ( 1916 )

Whitaker, J.

The plaintiff and the defendant on October 24, 1914, entered into a written agreement by the terms of which plaintiff agreed to pay the sum of $300, and the defendant agreed ‘1 to furnish a machine and competent instructor to instruct the pupil in the art of practical flying at our Aviation field at the Hemp-stead Plains, Aviation Grounds, Garden City, L. I., until the pupil is competent to comply with the rules of the International Aeronautical Federation for an Aviator’s certificate.” The plaintiff paid the $300 and began taking lessons under an instructor furnished by defendant. The lessons were discontinued for the winter in December, 1914, and resumed in June, 1915. The plaintiff took about twenty-five lessons in all, the last one, as he testifies, being on July 29, 1915. Plaintiff claims that about this time the machine, upon which he had been receiving instruction, was wrecked and that thereafter he received no more lessons. The contract contained no time limit and defendant was obligated thereby to give plaintiff a sufficient number of lessons until plaintiff became competent, etc. Neither was the plaintiff limited in time in which to receive the lessons so that the question is whether or not the defendant refused to perform on its part within a reasonable time after demand therefor made by the plaintiff. The court below found that “ the defendant has delayed an unreasonable time in the performance of its contract ” and gave judgment in favor of the plaintiff for the amount paid by him to defendant for instruction, and in addition thereto plaintiff’s expenses from Seattle, Wash., his place of residence, to Garden City. Clearly there is no foundation for the allowance of this last item. There is no claim that plaintiff was induced to seek the defendant’s school by any false representations, and payment of plaintiff’s traveling expenses from his residence to defendant’s school is not a proper element of damages for a breach of its contract. I am also of the opinion that the plaintiff failed to prove any breach of contract on the part of defendant. It appears that the plaintiff in December voluntarily ceased taking lessons and worked in defendant’s factory at wages, until he again resumed lessons in June, 1915. He admits that after he took his last lesson on July 29,1915, although the particular machine upon which he had been taking lessons, called by him the “ school machine,” was broken, the defendant had another machine running “ in fine shape ” but that he never asked for a lesson to be given him on that machine and was never told that he could receive lessons thereon. His reason being that “ I did not want lessons on that machine. ’ ’ He also testified that although he was frequently at the field where lessons were given he did not make himself known to any person there or ask for lessons. On November 22, 1915, plaintiff was notified by letter from defendant that he, plaintiff, had received twenty-seven lessons and that he was entitled to thirty-three more and that the defendant was ready to give those “ at any time weather conditions permitting.” Plaintiff says he visited defendant’s school several times after the receipt of this letter and says that they had no machine there. This evidently refers to what he termed the “ school machine,” as it is not disputed that the defendant had a high power machine there, and, as before stated, plaintiff did not ask for nor was instruction refused him upon that machine. For all that now appears in the • record the defendant was, and has been ready ever since July 29, 1915, to give plaintiff lessons at any time he might within reason apply.

Gut and Cohalan, JJ., concur.

Judgment reversed, new trial ordered, with thirty dollars costs to appellant to abide event.