
    William W. Brauer, Appellant and Respondent, v. The Oceanic Steam Navigation Company, Limited, Respondent and Appellant.
    
      Damages for a breach of contract —■ a loss sustained under a collateral contract is only recoverable where the party in default had, knowledge of it — costs not imposed as a condition of setting aside a verdict because of an error in the charge.
    
    In an action to recover damages for the breach of a contract, by which the defendant leased to the plaintiff the cattle space in its steamships for a certain period, the plaintiff cannot recover damages for loss under a collateral contract by which he was to receive commissions for the purchase and sale of the stock intended to be shipped by him, unless he brought to the knowledge of the defendant the fact that the shipping agreement was made with reference to the collateral contract for commissions.
    Where a verdict is set aside and a new trial is granted by the trial judge because ■ of an erroneous charge made by him, it is improper to require the payment of costs as a condition of granting the new trial.
    Appeal by the plaintiff, William W. Brauer, from, an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1901, granting the defendant’s motion for a new trial made upon the minutes after a trial at said term which resulted in the verdict of a jury in favor of the plaintiff for $40,000.
    ■ Also, an appeal by the defendant, The. Oceanic Steam Navigation Company, Limited, from so much of said order as grants a new trial upon condition that the defendant pay to. the plaintiff or his attorney taxable costs and disbursements in the action to the date of the •order.
    
      L. E. Warren, for the plaintiff.
    
      Everett P. Wheeler, for the defendant.
   Laughlin, J.:

The action is brought to recover damages for the breach of a contract to let the cattle space in certain steamships for the purpose of transporting cattle from New York to Liverpool from the 1st day of December, 1897, until the 30th day of November,T898,- upon terms ¿and for a consideration agreed upon by the parties.

Part of the damages claimed under the complaint and concerning-which evidence was.offered by the plaintiff, was for loss of commissions for buying cattle in this country, to the extent of the capacity of the defendant’s boats for the period specified,, and for selling the-same in England. Under the evidence introduced upon the trial,, the questions as to whether plaintiff informed defendant prior to its-alleged breach of the agreement that he had a contract for commissions on the purchase and sale of the stock intended to be shipped,, depended upon conflicting testimony and was for the jury.

.The record shows that after the denial of the defendant’s motion for a dismissal of the complaint at the close of all the evidence, the-plaintiff submitted to the court six written requests to charge and the defendant submitted' eleven. The .tenth request submitted by-defendant is as follows: That if the plaintiff did not inform defendant on or prior to the fifth of November, that he had a contract foicommissions upon the cattle which he was to purchase for shipment under the terms contained in the telegrams dated October 25, 26,, and 27, 1897, he cannot recover any loss- upon such commissions.”'

In the charge which followed, the court made no reference to this, request and gave the jury no instructions upon the question to* which it was directed. At the conclusion of the main body of the-charge the record shows that the court said that at the request of plaintiff two propositions there stated were charged, and these were-substantially plaintiff’s first and second requests. The record shows, that the court then said that - at the request of defendant' certain propositions there stated were also charged and'these were in effect-the first, second, sixth and eighth requests made by defendant. The propositions thus charged at the request of plaintiff and at- ■ the request of defendant did not cover the subject-matter of defendant’s tenth request herein quoted. Thereupon it appears by the-record that the defendant’s counsel asked whether the court refused to charge his other requests, to which the court replied, The-third and fourth.” Whereupon defendant’s counsel said, “ I except-to the refusal of the court.to charge the third request, the fourth-request, the fifth request, the, seventh request, the ninth request,, the tenth request, and the eleventh request.”

As has been seen, the court did not charge the requests to which, these exceptions relate. The fair inference from the silence of the court is that the court did not intend to charge the other requests. It would seem that the court was proceeding to specify in their order the requests made by defendant’s counsel which had! not been charged when defendant’s counsel interrupted and excepted to the refusal of the court to charge the requests not specifically charged.

Note.— The rest of the cases of this term, will be found in volume 67 App. Div.— [Rep.

The defendant, according to the evidence introduced in its behalf,, understood that plaintiff was dealing in-stock on his own account, and not as a commission agent.' If the jury believed this evidence-they would not have been justified in awarding, as damages, commissions for the purchase and sale of the stock for it could not be said that such commissions constituted profits that were fairly within the contemplation of the parties. To authorize a recovery, therefore, it was necessary to bring home to defendant knowledge that, the shipping agreement was made with reference to such collateral contract for commissions. ( Witherbee v. Meyer, 155 N. Y. 446; Booth, v. Spuyten Duyvil Rolling Mill Company, 60 id. 487 Swain v. Schieffelin, 134 id. 471; Hadley v. Baxendale, 9 Exch. 341). It thus appears that defendant’s tenth request should have-been charged and this error entitled defendant to a new trial.

It follows, therefore, that defendant was entitled to a new trial as matter of right for legal error, and in such case payment of costs-of the action should not have been imposed as a condition of granting the new trial. The order should be modified by striking out-the provision thereof requiring defendant to pay the costs, and as thus modified affirmed, with ten dollars costs and disbursements to. respondent to abide the event.

Patterson, Ingraham and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed,, /with ten dollars costs and disbursements to respondent to abide, event.  