
    Kathleen Brown, Respondent, v. Levi C. Weir, as President of the Adams Express Company, Appellant.
    
      Refusal by an express company to delives' an actress’ trunk, except upon Tier payment of an excessive charge— liability for the loss of earnings by the actress^ occasioned thereby—measure of damages — notice to a company to which the contracting compamy gives the trunk for delivery —proper procedure of the actress in such a case.
    
    An actress delivered to the Adams Express Company at Baltimore, Md., a trunk containing her theatrical wardrobe, consigned to herself at Brown’s Point, Astoria. The Adams Express Company had no notice of the contents of the trunk or of its probable importance to the actress except such as could be inferred from the fact that the trunk was delivered into its possession at a theatre. When the trunk arrived at its destination, on the following day, the Long Island Express Company, acting for the Adams Express Company, tendered it to the actress, but demanded five dollars and eighty-five cents charges as a condition of delivering it, although ’eighty-five cents was the proper-charge. The actress having refused to pay the amount demanded, the Long Island Express Company retained the trunk for a period of ten days, at' the expiration of which period, it delivered the trunk to the actress upon receipt of eighty-five cents.
    The detention of the trunk, which contained the actress’ wardrobe, prevented the actress from performing theatrical contracts aggregating §125, and it was conceded that the actress had informed the Long Island Express Company that its detention of the trunk interfered with her engagements. '
    
      Held,, that the actress could not recover from the Adams Express CompahyUfhe loss which she sustained by being prevented from fulfilling her theatrical engagements, for the reasons, first, that a party subjected to injury from a breach of contract must make reasonable exertions to render the injury as light as possible, and, second, that damages for breach of contract are only those which are incidental to and are directly caused by the breach, and may reasonably be presumed to have entered into the contemplation of the parties;
    That the rule, that the burden of proving that the damages could, have been prevented rests upon the party guilty of the breach of contract, had no application to the case at bar, as the plaintiff had not proved that she had suffered any damages which she could recover;
    That the contract having been made in Baltimore, its legal effect could not be changed by the fact that the plaintiff informed the Long Island Express Company that the trunk contained her wardrobe, and that the detention thereof interfered with her engagements.
    
      Semble, that the proper remedy of the plaintiff was either to sue for the recovery of the trunk and damages or to bring an action for conversion.
    Jenks and Hooker, JJ., dissented.
    
      Appeal by the defendant, Levi G. Weir, as President of the-Adams Express Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered in the office of the clerk of said court on the 21st day-of January, 1904.
    
      Richard. Reid Rogers, for the appellant.
    
      Harry T. Weeks, for the respondent.
   Woodward, J.:

The plaintiff in this action is an actress. On the 20th day of' October, 1902, she consigned to herself at Brown’s Point, Astoria,, through the defendant, a trunk containing her theatrical wardrobe. The facts are all stipulated, and there is no suggestion that the defendant had any notice of the contents of this trunk, or of its probable importance to the plaintiff, except that it was delivered into the possession of the defendant at a theatre or music hall in the city of Baltimore, which might, in an action to recover the value of the wardrobe, be of importance as tending to show that the defendant was. in possession of facts putting it upon inquiry, but which can have no bearing upon the question presented in this case. The trunk in-question was forwarded by the defendant, partially through the.Long Island Express Company, and was by the latter offered for-delivery at the plaintiff’s residence on the 21st day of October, 1902, or the day following its consignment, which was a compliance, with its implied contract to forward the same to its destination within a reasonable length of time. It is conceded that the reasonable and proper, charge for this service was eighty-five cents, but. the Long Island Express Company, acting for the defendant,, demanded five dollars and eighty-five cents as a condition of delivering the trunk, and this the plaintiff refused, though offering to pay the eighty-five cents. The agent of the express company thereupon refused to deliver the trunk, and it was held in the custody of the defendant or the Long Island Express Company until the 31st-day of October, 1902, at which time the defendant conceded that, it had made a mistake in the matter and delivered the trunk to the.plaintiff, accepting eighty-five cents for the carrying charges. The plaintiff, it is conceded, had contracts with various clubs and theatresfor the dates between the twenty-first and thirty-first of October, aggregating one hundred and twenty-five dollars, and in this action she has recovered a judgment for the full amount of this loss, it being claimed that she was prevented from appearing and filling these engagements on account of the action of the defendant in retaining possession of her trunk. The plaintiff, it is conceded, called the attention of the Long Island Express Company to the fact that the trunk contained her wardrobe, and that the action of the express company interfered with her engagements, but this, we believe, has no bearing upon the case, because the contract was made in Baltimore, and its legal effect could not be changed by anything that occurred subsequently. The defendant appeals from the judgment purely upon the proposition that an improper measure of damages has prevailed in the court below.

There are two rules of law which stand in the way of plaintiff’s recovery for the loss of her engagements, either of which is sufficient to justify a reversal of the judgment. The first of these rules is that which imposes upon a party subjected to injury from a breach of contract the active duty of making reasonable exertion to render the injury as light as possible. (Hamilton v. McPherson, 28 N. Y. 72, 77, and authorities there cited; Jenks v. Quinn, 137 id. 223, 228.) The other is that damages for breach of contract are only those which are incidental to, and directly caused by, the breach, and may reasonably be presumed to have entered into the contemplation of the parties; and not speculative profits, or accidental or consequential losses. (Hamilton v. McPherson, supra, 76, and authorities there cited; Allen v. McConihe, 124 N. Y. 342, 347, and authorities there cited; Rochester Lantern Co. v. S. & P. P. Co., 135 id. 209, 217, and authorities there cited.)- While it is probably true that the burden of proving that the damages which have been sustained in such a case could have been prevented rests upon the party guilty of the breach of contract (Hamilton v. McPherson, supra, 77), the evidence in this case fails to show that the plaintiff has suffered, any damages which she can recover in an action of this character, and the defendant is not, therefore, bound to prove that these damages might have been made less. The-question presented upon this appeal is not what damages the plaintiff might have recovered under proper proofs, but whether, under agreed facts submitted, subject to the right to exceptions, the plaintiff has established a right to recover anything. The only claim for damages is based upon the failure of the plaintiff to appear at several theatrical performances, alleged to be due to the failure of the defendant to deliver her trunk within a reasonable time. If the trunk had. been lost or destroyed in transit, or after it had reached its destination, and before the plaintiff had had a reasonable opportunity to gain possession of the same, the measure of damages would, undoubtedly, have been the value of the goods at the point of delivery, subject to the conditions of the contract of carriage, whatever those may have been. ' (Faulkner v. Hart, 82 N. Y. 413,417,418, and authorities there cited.) So it has been said that it is the duty of a carrier to transmit goods committed to him in a reasonable time, and if, from mere negligence or a plain violation of duty, he omits to transport them beyond a reasonable time, and their market value falls in the meantime, the true rule of damages is the difference in their value at the time and place they ought to have been delivered and the time of their actual delivery, and this duty extends to the actual delivery or its equivalent. (Sherman v. Hudson River Railroad Co., 64 N. Y. 254, 259, and authority there cited.) Whenever special or extraordinary damages, such as would not naturally or ordinarily follow a breach, have been awarded for the non-performance of contracts, whether for the sale or carriage of goods, or for the delivery of messages by telegraph, it has been for the reason that the contracts have been made with reference to the peculiar -circumstances known to both, and the particular loss had been in the contemplation of both at the time of making the contract, as a contingency which might follow the non-performance. (Baldwin v. United States Telegraph Co., 45 N. Y. 744, 750, and authorities there cited; Primrose v. Western Union Telegraph, 154 U. S. 1, 29, and authorities there cited.) And there being no evidence in this case of any knowledge on the part of the defendant or its agents at Baltimore that the plaintiff had any contracts which she could not fill without her trunk at the point of delivery,' her theory of damages is without support, and the judgment, being contrary to law, cannot stand.

The plaintiff was not without remedy; she could have instituted an action either in a Justice’s Court or in a court of record for th,B ■ recovery of a chattel, with damages, or she could have brought an action for conversion, and in either event she would,, in contemplation of law, have received the full measure of damages to which she. was entitled. But having neglected or refused to make use of .the remedies provided by law, and having subsequently accepted the trunk, paying the lawful charges of transportation, she cannot now recover the damages which she may have sustained by reason of her inability to appear in public without the wardrobe contained in her trunk. The rule which requires persons seeking' to recover damages to use diligence to make the losses as small' as possible-under all of the circumstances applies equally to express contracts or torts (Baldwin v. United States Telegraph Co., supra, 753), and the plaintiff having, through negligence or willfulness,, allowed the damages to be unnecessarily enhanced, the increased loss-falls justly upon her. (Hamilton v. McPherson, supra, 72, 77; Jenks v. Quinn, 137 id. 223, 228.)

The judgment appealed from should be reversed, with costs.

All concurred (Bartlett, J.,in result), except Jenks and Hooker, JJ., dissenting.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  