
    Austin Baldwin & Company, Inc., Appellant, v. Veronica Kohler, Richard W. Lawrence and William B. Ellison, as Executors of the Last Will and Testament of Charles Kohler, Deceased, Respondents.
    (Supreme Court, Appellate Term, First Department,
    March, 1916.)
    Contracts — executory — action to recover damages for breach of — . pleading — proof of actual damage — motions and orders.
    An executory contract calling for work and services other than personal and providing that plaintiff should handle the export business of K. and pay for his account all necessary disbursements for ocean freights, consular fees, etc., during the year succeeding March 25, 1913, is binding upon the executors df K.
    In an action against K.’s executors to recover damages for breach of the contract it appeared that K. died June 4, 1913, but that the manager of his business had repudiated the contract on May 3, 1913. On appeal by plaintiff from a judgment in its favor for $125 and costs, the same was reversed, the verdict set aside and as neither at the trial nor on the appeal had defendants urged any point other than that the contract had been induced by false representations and that the trial judge had correctly charged that any recovery must be limited to K.’s life, judgment was directed in favor of plaintiff for $1,250, the full amount provided in the contract to be paid to plaintiff. On motion to resettle the order so as to grant a new tóal in place of directing judgment in favor of plaintiff for the full amount, defendants raised the point that they were entitled to have plaintiff make proof of his actual damage so that they might in substance have credit for the amount which it would have cost plaintiff to perform its part of the agreement, but such point was not raised on motions for reargument or for leave to go to the Appellate Division. Held, that this court was without power to direct the judgment originally ordered and that plaintiff’s motion to vacate the order as resettled must he denied.
    Motion to vacate a resettlement of order.
    Thompson, Freedman & Cooke (Carleton Sprague Cooke, John Reynolds and Wilder Goodwin, of counsel), for appellant.
    O’Gorman, Battle & Vandiver (George Gordon Battle and Isaac H. Levy, of counsel), for respondents;
   Bijur, J.

This matter comes before us on a motion to vacate a resettlement of our order for judgment. On the original appeal to this court judgment in favor of plaintiff for $125 (and costs) was set aside and judgment in favor of plaintiff for $1,250 directed. Suit was brought by plaintiff to recover damages for breach of an executory contract made with defendants ’ testator. The contract, dated March 14, 1913, provided, so far as material, that the plaintiff will handle the same (i e., Kohler’s export business) in the usual manner, and will pay for your (Kohler’s) account all necessary disbursements in connection with the same for ocean freights, consular fees ’ ’ during the year succeeding the acceptance, which was March 25, 1913. Kohler died June fourth of that year, but on May third the manager of his business had repudiated the contract.

The opinion of this court, reversing the judgment •below, is reported in 92 Misc. Rep. 174. An opinion of an appellate court, it need hardly be said, does not necessarily set forth all the reasons of all the members of the court for arriving at the conclusion therein indicated.

In my view, the language of Judge Peckham in Chamberlain v. Dunlop, 126 N. Y. 45, 52, is applicable to the contract here involved: “ The presumption is that the party making a contract intends to bind his executors and administrators, unless the contract is of that nature which calls for some personal quality of the testator, or the words of the contract are such that it is plain no presumption of the kind can be indulged in. ’ ’ It seems to me that this contract, tested by this rule, was intended to be binding upon the defendants as executors of Charles Kohler, deceased. See Kernochan v. Murray, 53 Hun, 70, which was another phase of a case reported in 111 N. Y. 306, and Russell v. Buckhout, 87 Hun, 46. Also Hawkins v. Ball, 57 Ky. (18 B. Mon.) 816; Drummond v. Crane, 159 Mass. 577. In this respect this case differs radically from Matter of Daly, 58 App. Div. 49, and Spalding v. Rosa, 71 N. Y. 40. See also Tete v. Lanaux, 45 La. Ann. 1343 (distinguishing between the death of an obligor and an obligee, under the Louisiana Code).

Entertaining these views, I could not escape thé conclusion that the learned trial court had erred in ruling in substance that the contract by virtue of its terms was ended by the death of Charles Kohler, and that, therefore, no recovery could be had for the time succeeding his decease. There had been no suggestions, as I recall it, either at the trial or in the briefs submitted to us, that the defendants urged or desired to urge any point other than that the contract had been induced to be made on their part by false representations of the plaintiff, and that the learned trial judge had'correctly ruled (in his charge) that recovery must be limited to the term of the life of Kohler. It seemed ' to us therefore that, as the jury had found adversely to defendants on the fact, and the judge had ruled adversely to plaintiff on the question of the term of the contract — which ruling we were about to reverse — judgment might properly be directed in favor of plaintiff for the full amount provided in the contract to be paid to plaintiff.

We do not recall that on the motions for reargument or for leave to go to the Appellate Division made by defendants the point was raised by defendants that they were entitled to have plaintiff make proof of his actual damage so that defendants might in substance have credit for the amount which it would have cost plaintiff to perform its part of the agreement. That point, however, was directly raised on a motion to resettle our order so as to grant a new trial in place of directing judgment in favor of plaintiff for the full amount. Upon the present motion, plaintiff challenges the correctness of our granting the motion to thus resettle the order on two grounds:

1. That defendants have waived their right to litigate this point because they neither proved nor offered to prove at the trial below, what,- if anything, it would have cost plaintiff to perform the contract.

2. That the contract is of such nature that it must be treated as one for ‘1 services, ’ ’ namely, one in which it must be presumed that the plaintiff would be put either to no expense or' to an expense substantially negligible.

I find neither ground well taken. Upon the second point, plaintiff cites Ware Bros. Co. v. Cortland C. & C. Co., 192 N. Y. 439, where plaintiffs were permitted to recover the full contract price, without proof of cost of performance, under an agreement to insert defendant’s advertisement in plaintiff’s publication. The court there held, in substance, that it was manifest, as a matter of common knowledge, that the cost of printing an advertisement in a publication regularly issued was merely that of the “ ink used and paper upon which it is printed, and these articles are of such trivial nature as not in our judgment to change the character of the contract from one. for services to be rendered.” I find nothing parallel to this in the contract in the instant case; nor does it become material to urge (as the plaintiff now does) that this contract calls merely for the performance of ‘‘ services. ’ ’ The use of that .word is significant in this connection only where the services are those of the contractor alone, namely, where they are personal, and that the Court of Appeals had personal services in mind in writing as it did in the Ware case is evident from its citation of Howard v. Daly, 61 N. Y. 362, and Milage v. Woodward, 186 id. 252, 257. But that is quite different from assuming as matter of law that, when one agrees not merely to render services but also to see that services of a varied and prolonged character are performed by his employees, he incurs no measurable expense in that regard. My inference would naturally be to the contrary. In addition to our own view that the contract in the case at bar, on the present state of the record, called for work and services other than personal, plaintiff is concluded upon that point by our having sustained on this appeal its own contention in that regard. In its brief on the appeal, it urged 1 ‘ The presumption is that the party making a contract intends to bind his executors and administrators unless the contract is of that nature which calls for some personal quality of the testator or the other party.” And again; “ This contract is certainly at least as impersonal as a contract to build a house. ’ ’

This consideration, however, disposes equally of plaintiff’s first point, for it is axiomatic that the burden lies upon the plaintiff to prove his damages arising out of a breach of contract. What plaintiff has in mind is the right or burden, as the case may be, of the defendants to show that these damages could have been reduced. See Railway Advertising Co. v. Standard R. Co., 83 App. Div. 191; affd., 178 N. Y. 570. Consequently, whether defendants at the trial undertook to make that proof or not is wholly immaterial. Cases cited by plaintiff on this point such as Northampton Bank v. Kidder, 18 J. & S. 98; Emmerich v. Hefferman, 21 id. 98, have no application whatsoever to the present controversy. They concern only motions for new trial on the ground of newly-discovered evidence.

I think that what plaintiff is really endeavoring to urge upon us is that defendants, by relying below solely on their contention of law that the contract was terminated by the death of Kohler, and their contention of fact that the contract was induced by false representations, had forever waived the right to require plaintiff to prove that it had suffered damage by defendants’ breach of the contract. It is undoubtedly true that defendants were barred from urging plaintiff’s failure of proof in this respect as a ground for reversing the judgment against them, because they had not raised that point below, but defendants did not appeal from the judgment against them for $125. It was upon the plaintiff’s appeal that we reversed the judgment.

I have herein explained that we proceeded to direct a judgment in favor of plaintiff for the full amount on the assumption, gratuitous though it may have been, that defendants did not desire to contest the amount but only to raise a question of law. We never, however, considered that defendants had, by waiver or otherwise, precluded themselves from litigating this point. Since, therefore, this question is now directly presented for our consideration, I am of opinion that without defendants’ consent we have no power to direct the judgment originally ordered to be entered. Until the amendment of section 1317, infra, an appellate court on reversing a judgment would grant a new trial unless The appellate court can see that no possible state of proof applicable to the issues in the case will entitle the party to a recovery.” Edmonston v. McDoud, 16 N. Y. 543, 545; Brakett v. Griswold, 128 id. 644; New v. Village of New Rochelle, 158 id. 41, 43; Mansfield v. Mayor of New York, 165 id. 208, 215. Of course it cannot be successfully claimed that any such situation is presented in the case at bar. Our power, therefore, must be sought in section 1317 of the Code. of Civil Procedure. This, however, as pointed out in the lucid opinion of Judge Miller in Middleton v. Whitridge, 213 N. Y. 499, 506, 507, does not warrant the appellate court to substitute its judgment on the facts for the judgment of the jury. As is said in Whitehead v. Kennedy, 69 N. Y. 462, 468: “ This would be substituting another tribunal from that known to the constitution and the laws for the trial of causes.” And in Cuff v. Dorland, 57 N. Y. 560, 565, the Court of Appeals, speaking of the former General Term, said: 1 £ They had power to order final judgment when the facts were agreed to by the parties or found by the court or a jury on the trial.” See to the same effect Benedict v. Arnoux, 154 N. Y. 715, 723-727. In other words, I take it that we may say for practical purposes that the appellate court may for the nonce put itself in the position of the trial judge, and if there has been a motion to dismiss or to direct a verdict upon which he has erroneously ruled; or special findings of the jury upon which he has directed an erroneous general verdict; or a general verdict which he has erroneously set aside, the appellate court may reverse the erroneous ruling and, disregarding it, give such judgment as would have been warranted at that trial. We have, however, no power on reversing a judgment because the jury was not permitted to consider the full extent of the damage and has, therefore, brought in a verdict apparently insufficient — to proceed to increase that verdict through consideration of issues upon which the jury has not passed. See also Dayton v. Parke, 142 N. Y. 391, 398.

It is quite true that the verdict of the jury in the case at bar must necessarily have been predicated upon a finding that the contract was entered into by the defendants without fraud practiced by the plaintiff, and that, consequently, the plaintiff was entitled to the damages which he suffered for a breach of the contract as a whole. It may also be urged that having found the damage for the one month to be, as claimed by the plaintiff, the full amount of the contract payment for that month, it may be inferred that the jury would have made a similar and equal finding for each of the remaining nine months — consideration of which was excluded from their determination. Had questions been submitted to the jury to make special findings separately as to the one month and as to the other nine, and had a general verdict then been directed by the court for the one month alone, we might be in a position to cure the error committed on the trial by giving effect, as matter of law (in which respect alone the judge erred), to the actual findings of the jury — but no such procedure was followed. Nor is this view merely academic. It relates to a matter of substance and of practical merit.

As the case was tried, defendants’ answer interposed the plea of the death of Kohler as a fact limiting the amount of plaintiff’s possible recovery to one month. With that in mind defendants might quite reasonably and properly have been indifferent to the amount of the verdict since it could not possibly exceed $125. Nothing had occurred at the trial (plaintiff having made no proof of damage) which required defendants to call for a ruling of the court on the question whether the damages should be limited to the one month or not. Had the judge then charged the jury that plaintiff might recover for the full term of the contract, defendants might have excepted to the charge on the ground that there had been no proof of damage (Vail v. Reynolds, 118 N. Y. 297, 300) or might have taken such other appropriate action as to it seemed fit. The mere fact that it did not raise by objection or exception the point that plaintiff had failed to prove damages for one month does not, from any standpoint or for any purpose, prevent it from becoming entitled to raise that objection in respect of a period which was never submitted to the determination of a jury.

Plaintiff has also asked on its present motion that if we grant a new trial we limit the same to the issue of the amount of damages and exclude the question of the alleged fraud in procuring defendants’ assent to the engagement. On grounds which are quite similar to those hereinabove discussed, we are equally without power to thus sever the issues in a case of this kind. Story v. New York & H. R. R. Co., 6 N. Y. 85; Wolstenholme v. Wolstenholm File Mfg. Co., 64 id. 272; Goodsell v. Western U. Tel. Co., 109 id. 147.

^ Under these circumstances, and for these reasons, I am of opinion that we were without power to direct the judgment originally ordered, and that plaintiff’s motion to vacate our resettlement of the order must be denied.

Shearn, J., concurs.

Motion denied.  