
    THE CITY OF BROOKLYN against THE BROOKLYN CITY RAILROAD COMPANY.
    
      Supreme Court, Second District; General Term,
    
    
      February, 1870.
    Appeal.—Proof of Damage.—Waiver of Condition.—Measure of Damages.
    In an action by a city, on a'.boncl given by a city railroad company, to keep in repair the streets used by the company, proof of neglect to repair entitles plaintiffs to nominal damages, and the objection that actual damages were not proved cannot be heard for the first time on appeal, in support of a judgment dismissing the complaint.
    Such a bond contained a clause requiring the pavement to be kept in repair, “ under the direction of such competent authority as the common council may designate.”
    
      Held, 1. That the parties having acted for a long time without the appointment of any such officer by the city, the condition, if it were one, was waived, and the omission of such appointment was no defense to the railroad company, in an action on the bond.
    
      2. That a judgment recovered against the city by a person injured in the street for want of its repair, afforded a proper measure of damages in such an action.
    Under a contract with a municipal corporation, by which the contracting party undertakes to keep a street in repair, the damages recoverable on a breach are not restricted to the expense of repairing, but the municipal corporation may recover the amount for which it has been adjudged Table to a third person, for injuries sustained by him by reason of the non-repair.
    Appeal from a judgment'dismissing the complaint.
    The Brooklyn City Railroad Company, a short time after its incorporation, sought to obtain from the City of Brooklyn permission to lay railroad tracks upon sixteen different streets of that city, and as a part consicb eration for such franchise entered into a bond with the city, wherein, among other things, it covenanted and agreed to keep the pavement of such streets “in thorough repair within the tracks, and three feet on each side thereof, with the best water stone, under the direction of such competent authority as the common council might designate.”
    Under these circumstances the permission was accorded, and the company put down its tracks on the streets indicated, including Flushing-avenue, at the points important to this case.
    Subsequently, and in June, 1857, Ferdinand Meier, while driving along Flushing-avenue, had a portion of his wagon precipitated into á hole, which apparently had existed for some days, within the line of the railroad tracks, was thrown from his seat, run over by both wheels, and struck by an empty hogshead, which, from the effects of the jar, fell from the truck. The injury was so severe that he was disabled from labor by it, and he died from its effects in 1866.
    Prior to his death, however, he brought an action in the city court of Brooklyn, against the city for damages, and recovered therein a judgment for seven thousand two hundred and fifty-six dollars and twenty-four cents, damages and costs.
    The trial of the action was thoroughly contested by the city, and after judgment, appeal was taken by it, first to the general term of the supreme court, and second to the court of appeals ; in both of "which appellate courts the judgment was affirmed, and a final judgment was thereupon had against the city for eleven thousand and sixty-four dollars; which judgment the city paid.
    At the cpmmencement of that action full notice thereof was given by the city to the railroad company, and it was invited to take such proceeding in the matter as it thought advisable. The notice, however, produced no effect.
    
      The present action was brought to recover from the railroad company, because of its breach of covenant, the amount of Meier’s final judgment against the city. A trial being had, the occurrence of the original injury to Meier and the neglect of the respondents to keep said covenant were' proved de nono, and the records of the case of Meier were produced in evidence;
    The court nonsuited the city, upon the ground that there was no evidence that the common council had designated a competent authority to superintend the keeping of said pavement in repair, as indicated in said covenant, and that such designation was an indispensable prerequisite to the performance of such covenant by the respondent.
    From this judgment the city took the present appeal.
    
      William C. De Witt, for the plaintiffs, appellants.
    I. The intention and substance of the covenant clearly is to tax the railroad company with the duty of keeping the pavement of the streets in thorough repair, while the superintendence reserved to the"~c’ity refers merely to the manner of performing such duty. -
    II. The performance of the covenant to keep in repair is in no sense dependent on the exercise of the city’s right to designate an authority to direct the execution of the work. 1. Whether a condition of a contract is precedent or -subsequent to another, depends, not upon technical words, or order of words, but upon the good sense and plain understanding of the contract, and the acts to be performed (Barruso v. Madan, 2 Johns., 145; Cunningham v. Morrell, 10 Id., 203; Selden v. Pringle, 17 Barb., 458). Will any one maintain that in the absence of this designation of a supervisor power, the defendants could have torn up the streets designated in its bond, and leaving them in perpetual disorder, have still been within its own intent and meaning of the contract ? The idea surely was, that not only would the defendants keep the street in repair, hut, further still, they would do so to the complete satisfaction of the* common council.
    III. Neither is there any such mutuality between the act to be performed by the company and that which the common council might perform, as to make them dependent. To accomplish this, the act claimed as a condition precedent must be the consideration for the act which it is sought to have done. The principle is thus stated from the cases following : “ Where-there are mutual agreements of the parties, the thing to_be done by the one being the consideration of the thing to be done by the other, and both are to be performed at the same time, they are dependent, and neither party can recover without performance, or a tender of performance on his part” (Parker v. Parmele, 20 Johns., 130; Johnson v. Wygant, 11 Wend., 48; Morris v. Sliter, 1 Den., 59; Williams v. Healy, 3 Id., 363; and see 16 Johns., 268; 2 Id., 207; 10 Id., 266; 12 Id., 212). Here the thing to be done by the city, instead of being a consideration, would be an additional burden. In the absence of an officer of the city whose direction the company would be bound to obey, the task would be easier, and might be done by the company, when and how and where it suited their convenience. The consideration for the performance of this covenant was vastly greater than any such technicality. It was the right to hold the immense emoluments of a railroad monopoly over sixteen of the main thoroughfares of the city. And aside from the few license fees the city only asked that the covenants be strictly kept, and it would amount to a defeat of justice if the damages sustained by the city from the breach of these covenants should remain unliquidated through any such subtlety as that suggested.
    IV. That portion of the covenant in question which it is claimed imposed on the common council the duty of designating an authority to direct the repair of the streets, is redundant and' nugatory. The street commissioner is charged with the care of all the streets of the city (Laws of 1849, p. 48, §§ 1, 13, 20, 22, 25). And "being thus “designated” as the “competent authority to direct the repairing of streets,” the common council could have made no other designation. The right of the city provided for in the covenant was virtually exercised by law.
    _V. The objection that the judgment in the case of Meier is not a proper measure of the damages to be recovered in this case, and that damages not measured or liquidated are beyond the reach of the pleadings herein, was not raised upon the trial, nor is it noticed in the opinion of the judge who presided. If it lqid been, a motion to amend would have been made if necessary.
    YI. The objection, however, is of no force ; because, (1.) The instrument in suit is not a mere agreement, nor subject to such rules as govern that kind of instrument. It is a bond, having a penal sum fixed, and dependent in law upon the performance of each and all its conditions. The penal sum of this bond is two hundred thousand dollars, and its payment is conditioned freely upon the non-performance of any of its requirements. That the bond required the respondents to do the particular thing which would have prevented the accident to Meier, "viz: to keep the street in repair at the point where Meier’s wagon found it otherwise, is not questioned. ’ This the company failed to do, and it stood liable therefore to the city in a suit at’law, as known to early jurisprudence, for the full amount of the penal sum of its bond. Originally no relief was given against that inflexible reading of a bond which renders the obligor liable to the penal sum if it be violated. After many years of the administration of this rigorous prin - ciple, a court of equity was allowed to intervene against the strict compact of the bond, and to do what ? To let the obligor off, if he put the obligee in as good a plight as he would have been in had not the obligor violated Ms bond. It would shock the sense of mankind if the penal imposition ofabond were further relaxed (Sedgw. on Dam., 104). This is what the city ask of the railroad company; and to put the city in as good a plight as it would have been in had not the bond in suit been violated, Meier’s judgment must be refunded by the respondents. (2.) Nor is this a stretch of the rule of damages governing the violation of a covenant. A party is not restricted to the loss or injury which immediately inheres in the unlawful act or thing itself, but may claim for what flows therefrom (See Passinger v. Thorburn, 34 N. Y., 634; Milburn v. Belloni, 39 N. Y., 53, and cases cited; see also Sedgw. on Dam., 397, 798). It would be a direful inroad upon the principle of these cases, to say that the city could only claim the mere cost of putting Flushing-avenue in repair, at the point where Meier fell. The damages flowing therefrom must be awarded as well.” (3.) The complaint sets forth both the amount recovered by Meier on the trial, and that recovered at the end of the appeal. Either of these the city was entitled tó recover. The principle is “on all fours” with that governing a- suit brought on a bond for jail liberties, where, in case of escape, the whole amount due in the original action may be recovered (Kellog v. Manro, 9 Johns., 300). And also with that of an action brought by the sheriff, after he has been mulct in a judgment for an escape, against the sureties on the bond of the fugitive, where the sheriff may recover not only the amount of the judgment rendered against, him, but also, in many cases, the costs of his defense (Kipp v. Brigham, 7 Johns., 168). So also with bonds on appeal. The doctrines of res adjudícala are relevant to the discussion. This is a suit on a breach of contract for liquidated damages. Because • the respondent broke its contract, the city has been compelled, by a judicial determination, to pay a specific amount, and that amount is the measure of damages due from the respondent.
    
      
      Grenville T. Jenks, for the defendants, respondents.
    I. No breach of the condition was shown. The repairs were to be made under the direction of such competent authority as the common council may designate. The authority was to be selected b^ the city, was to be competent, and the work done was to be, under the direction of such authority. Ho designation was shown to have been made of the authority, and of course no authority was given to the defendants to do the work in the public street, or direction as to its performance. And this was a condition precedent to the breach. The city by its charter had the exclusive control of the streets, and without their permission defendants were trespassing if they disturbed the street,- as would have been required to do the work. This was not an immaterial provision, but essential to the contract, in order to protect both parties to it. The agree» ment or bond was in relation to the construction and maintenance for many years, in the city, of about twenty miles of railroad. The questions which might arise as to the manner of making repairs would probably be frequent, and often difficult. In the judgment of the parties, the direction of a competent authority was prerequisite (Comb v. Greene, 11 Mees. & W., 480). In this case the defendant agreed to expend one hundred pounds upon improvements in a house under the direction of a surveyor, to be appointed by the plaintiff. The court held the appointment to be a condition precedent. _ _____ __
    II. The court properly granted the nonsuit, because no damage was shown. The proper measure of damage was the expense of repairing. The judgment against the city was for a liability not imposed upon the defendant by law. The city owed a duty to travelers to have the highway safe, and the judgment concludes it upon the question of negligence. The railroad company owed no such duty to the traveler. Their obligations ran to the city to do the work or pay for its execution. By its own wrong the city now attempts to immensely increase the liability of the company, and to make it respond for remote and consequential damages not contemplated in the contract.
   By the Court.—Pratt, J.

This is an action for an alleged breach of a bond given by defendants to plaintiff.

The condition of the bond is as follows: “ The pavement to be kept in thorough repair by the said company, within the tracks, and three feet on each side thereof, with the best water stone, under the direction of such competent authority as the common council may designate.”

The breach was the alleged failure of the company to keep the pavement in repair as provided, whereby one Ferdinand Meier was injured to the damage of plaintiff in the amount of a certain judgment recovered by Meier against it in a suit which the company had been notified to defend.

The complaint claimed the amount paid by the city on said judgment, as the measure of damages. The point that no damage was shown was not taken at the trial, and should not be considered here. Had the point been taken when the • plaintiff rested, a motion might have been made to put in more evidence; but there was evidence in the case that the defendants had not kept the street in repair as agreed, and the plaintiff, if there had been a breach, was at least entitled to nominal damages.

The point upon which the case was decided at the trial, was that no breach had been proved, as the plaintiff did not prove as matter of fact any designation of competent authority under whose direction the pavement was to' be kept in repair. The legal question is, whether this clause is a condition precedent to the obligation of the defendants to'make any repairs ?

It cannot be denied that the agreement was a sufficient authority for the defendant to enter upon and use the streets for the purposes of their charter, without being liable to the city as trespassers. They did so enter upon and use the streets, and exhibited no fear of liability for their acts until it became a convenient excuse for their failure to perform the consideration for which their license so to use the streets was granted.

' In one view it is immaterial whether or not the clause providing for a designation of competent authority was a condition precedent to the defendants keeping the streets in repair. It was a condition that could be waived; and if the acts of both parties were such that a waiver should have been inferred as matter of law prior to the alleged. breach, it was not competent for the defendants in this suit to set up the clause as a defense.

The bond would become changed by tacit agreement, acted upon by both parties, and neither party could return to- and exact the original terms, without reasonable notice of its intention so to do.

I think it is clear that the defendants waived the clause requiring a designation, by entering upon, using and repairing the streets from the date of the bond t¿ the day of trial.

■The plaintiff waived it by permitting the defendants so to enter upon, use and repair the streets without making any designation; and thus both parties acquiesced for several years and until the commencement of .this suit.

The defendants, by accepting the benefits of the agreement, and going upon the streets and repairing them, gave the plaintiff to understand that they did not require any authority to be designated under whose direction they should do the work; and they are now estopped from setting up, in defense of this suit, laches on the part of the plaintiff, which were induced by their own conduct.

It is a fair construction of the contract between the parties, that the clause, “under whose direction, &c., .....” was a right secured to the plaintiff, which it could avail ■ itself of or not, at its option, irrespective of any claim the defendants might make in that behalf.

The city was at liberty to waive the right to designate any competent authority, without any consent on the part of the defendants. . It was an additional burden imposed on the defendants. They were not only to keep said streets in repair, but were to do so under the direction of any competent authority designated by the plaintiff.'

The waiving of this right on the part of the plaintiff being in favor of the defendants, they must be presumed to have accepted such waiver and acceded thereto for several years and until the date of the complaint.

The case of Combe v. Greene, 11 Mees. & W., 480, cited by defendants, is not analogous to the case at bar. In that case the defendant agreed to expend one hundred pounds upon improvements in a house, under the direction of a surveyor to be appointed by the plaintiff. The defendant could not know where or how to expend the money until the surveyor was appointed. The work was not described, and the court held, construing- the contract to give effect to the intent of the parties, that the appointment of a surveyor was a condition precedent; but here the work was described ; the time when and the manner how it was to be done, was stipulated in the contract.

The defendants were to keep the streets in repair at all times within the tracks and three feet on each side thereof with the best water stone. The defendants not only knew exactly what they were to do under the contract, but how and when they were to do it. 7'

The substance of the contract on the part of defendants was to keep the pavement at all times in repair, and not to do work on the pavement when directed by city authorities; this obligation became operative at all times and under all circumstances, whenever the pavement got out of repair, and the qualification that the work of repairing was to be done under the plaintiff’s authority related only to the manner of doing the work, and could not affect the time of doing it, in the absence of a positive restriction not to do it at a particular time.

The contract must be construed so as to carry out the intention of the parties.

In order to do this, the court can take into consideration all the surrounding circumstances. A contract riill not be so construed as to nullify it if it can be sustained by any reasonable construction.

To judge correctly the intention of the parties to this contract, it must be remembered that by it the city conveyed to the defendants a right of great value, and that the only material benefit the city was-to receive therefor wa,s-the repair of the streets by defendants.

It cannot be presumed that the city intended to grant the right for nothing, nor that the defendants expected to receive it without some equivalent.

But as there was a superintendent of streets appointed by law, and as the common council has no power to designate a person as anticipated by the contract, the construction contended for by defendants would relieve them from all liability. This cannot have been the intention of the parties, and the court must seek for some construction that will not do violence to reason.

The court must give effect to the contract as far as possible. „

There is no reason why defendants should not be held responsible for their failure to make the repairs.

The measure of damages is that»contended for by plaintiff. The general rule is that the party injured by the breach of a contract can recover all the damage he can prove himself to have sustained. This is qualified in. cases arising upon contract, by an- exception to the rule, to the effect that the damage must be such as might naturally have been expected to follow the breach (Griffin v. Colver, 16 N. Y., 489).

In this case the natural and ordinary consequences of a breach of defendants’ contract to repair was the injury to Meier and the recovery of damages therefor. Recovery and payments of such judgments as that recovered against the city, might naturally have been expected to follow the breach of defendants’ contract.

The city should recover the amount paid by them upon the j udgment. As they notified the railroad company to defend the suit brought against the city, and the company failed to do so, the éxpenses of defending the suit are also a proper item in the recovery here.

It might be otherwise, were it not that a judgment of the court was necessary to fix the amount of liability before the city could safely pay.

Nor can it be claimed that these damages are too remote. Defendants’ negligence caused the injury, and the injury occasioned the judgment.

The question is not what was the immediate cause of the loss complained of, but what was the efficient, procuring, predominating cause, upon a comparison of all the facts % The law, though it does not seek for the cause of causes, is sedulous to find the true cause, and distinguish that from its incidents and consequences.

A familiar illustration is afforded by cases of insurance against fire.

The property may be destroyed by the direct means of water used to extinguish the fire, or injured by removal," or stolen by reason of the exposure caused by the fire. Yet the fire is the efficient cause, and the insurer must bear the loss.

In Siordet v. Hall (4 Bing., 607), the immediate cause of the injury was escape of steam from a boiler—a prior cause was the cracking of the boiler, still again caused by frost. But the court went back of these intervening causes to the efficient cause—the captain’s negligence in improperly filling the boiler with water.

In the case at bar, the loss sustained by the city is less remote from the procuring cause than in the cases cited.

The city were not bound as against the defendants to keep the streets in repair; on the other hand, defendants owed that duty to the city—and cannot complain of the city for not doing what they had stipulated to do themselves. As against the defendants, the city had a right to presume the street was in repair, and act accordingly.

It is true, the city owed a safe road to travelers, but they had contracted this duty out to defendants, and defendants were bound to indemnify the city against any loss which was the direct-result of their failure to perform their contract.

The natural result of their failure was that such injuries would follow, and such damages be recovered. That was the liability which, as between the parties, was assumed by defendants.

J. F. Barnard, P. J., and Gilbert, J., concurred.

New trial ordered. 
      
       Present, J. B. Barnard, P. J., and Pratt and Gilbert, JJ.
     