
    Luther E. Mansfield, Resp’t, v. The New York Central and Hudson River Railroad Co., App’lt.
    
    
      (Court of Appeals, Second, Division,
    
    
      Filed June 4, 1889.)
    
    1. Contract—Builders—Construction of—Recovery.
    The action was to recover for breach of contract. There were two stipulations in the contract, upon which plaintiff seeks to recover damages. The instrument provided, among other things, that plaintiff and one Gill should furnish materials, perform the work in erecting the superstructure of a certain elevator in New York city, and should finish the same within five months from the time of the commencement of the work, and should receive therefor a specified sum, and the further sum of $500 per day for each day less than that occupied in its construction. The plaintiff also claims to recover damages for not having the foundations ready for the erection of the elevator within five days of the time when defendant gave plaintiff notice that the foundations were ready The damages he seeks to recover in that regard are for extra work in placing and handling and moving his materials. Held, that the two stipulations in the contract were independent of each other; that plaintiff could recover the $500 per diem, for the time that was unexpired for the completion of the structure, and also any damage sustained by reason of extra work, or that portion of the work which he did before the foundations were in the condition required to be by the contract.
    
      % Same—Wbcen interest on claim for unliquidated damages allowed.
    
      Held, that the allowance of interest upon the claims, from the time of the commencement of the action to the day of trial, was proper. Per Potter. J ; all the other judges dissenting.
    
      W. W. McFarland, for resp’t; John E. Barrows, for app’lt.
    
      
       Modifying and affirming 12 N. Y. State Rep., 871
    
   Potter, J.

This action was' brought to recover damages on the part of the plaintiff and respondent, against the defendant, the New York Central and Hudson River Railroad Company, appellants, for breach of a contract made and entered into between them in respect to the building of an elevator in the city of New York. There are two separate and independent stipulations in the contract, for the breach of each of which, plaintiff seeks to recover damages. The instrument provided, among other things, that Gill and Mansfield should furnish materials, perform the work in erecting the superstructure of the elevator over the waters upon piers in the Hudson river between Sixtieth and Sixty-first streets, in the city of New York, and should finish the same within five months from the time of the commencement of the work, and should receive as their compensation therefor the sum of $331,500, and the further sum of $500 per day for each day less than that, occupied in its construction.

In respect to the time of commencing the work, it was provided “ that said parties of the first part hereby further agree to commence the erection of the elevator within five days after notice of the engineer that the foundations are ready and complete, the same ready for use, of all the lofting elevator, within five months thereafter.” The plaintiff alleges that he performed the work within the time by about thirty days, and was thus entitled to receive, under the contract, $500 a day, for the thirty days, amounting to $15,000. The plaintiff also claims to recover of the defendant, damages for not having the foundations ready for the erection of the elevator, within five days of the time when defendant, through its engineer, gave the plaintiff notice that the foundations were ready. The damages he seeks to recover in that regard, are for inconvenience and extra work in placing and handling, and moving his materials upon and about the premises where the erections were to be made.

The case has been twice tried at circuit, and has been to-the general term three times, and to the court of appeals-once. On the appeal to the court of appeals, that court lay down certain principles upon which plaintiff’s rights depend under the contract, and its several provisions, and is to be found at 102 N. Y., at page 205. N. Y. State Rep., 390.

Upon that appeal, it was held by this court, in substance, that the two stipulations contained in the agreement and on account for breach of which the action is brought, were independent of each other, and that the plaintiff could, upon proper proof, recover the five hundred dollars per diem, for the time that was unexpired for the completion of the structure, and that, also, upon proper proof, he was entitled to recover any damage which he sustained by reason of the extra work and moneys paid out in the doing of the work, or that portion of the work which he did before the foundations were in the condition required to be by the contract.

The case, of course, must be disposed of, upon this appeal, in accordance with the principles laid down in the former appeal, and it is not perceived, upon an examination of the case as now presented, but that the last trial was conducted in accordance with the principles thus laid down by the court on the former appeal. Hence we perceive no error in those respects. The question in regard to the rule of damages, so far as interest was concerned, at least upon the sums which plaintiff might prove and become entitled to, under the rulings on the former appeal, were not disposed of by the court on the former appeal, but were left to be raiseÜ upon such evidence and findings as should be had upon a subsequent trial. Upon the last trial the plaintiff proved and the jury found, upon sufficient proof, in our judgment, that the plaintiff was entitled to recover five hundred dollars per day for the thirty days within which the work could have been done between the commencement of the work, if the foundations had been completed and the five months the defendant was allowed to complete it in. This was within the principle decided by this court that the plaintiff might recover in this action. They also found the damages which the plaintiff had sustained by reason that the foundations were not in condition required to be by the contract, was $802.

According to my apprehension of the case upon this appeal, the only question for our consideration remaining is whether or not the plaintiff is entitled to recover interest upon these two sums, as found by the jury, or upon either of them, as damages.

The general rule no doubt is that interest cannot be allowed upon claims for unliquidated damages, but by legislation in some instances or in respect to a certain class of actions and by decisions of courts, cases of unliquidated damages in which interest will not be allowed is becoming more rare. We think the rule still is, that where the damages are entirely unliquidated, and where the jury have to take numerous elements of uncertainty and doubt, and speculation into account in rendering a verdict, the old rule still applies. But where the elements which enter into and form a part of the considerations which the jury are to determine upon in respect to the amount of damages, the tendency of the decisions of the court is in the direction of an extension of the rule in various cases of unliquidated damages where formerly the rule of allowing interest would not be permitted. It is done for the purpose of making a party who has sustained damage by reason of the failure of another party to perform his agreement, some compensation or some indemnity for the loss which he has sustained. Some cases have left this question titled doubtful, in cases where a party may be en-to interest, whether the jury may find that interest as damages in their discretion, or whether the court may direct, as a matter of law if they find a verdict for a party, to also include in or to add to the amount of damages, the interest which has accrued from the time of the commencement of the suit, or from some former time when the cause of action accrued or a demand of payment was made.

Whether or not it should have been left to the jury in their discretion to have allowed interest as damages, is not a matter of any importance in this case, if the court would have been authorized as a matter of law to direct the jury to include in the damages assessed by them also the interest upon such damages as they found, for the jury allowed the plaintiff to recover interest from the time of the commencement of the action on both the sums for damage which they found for the plaintiff, and so the same result has been reached.

The question then recurs, whether or not the plaintiff was entitled either as matter of law or as to have it submitted to the discretion of the jury, whether interest should have been allowed upon these two claims for damages as found by the jury. There would not seem to be many elements of uncertainty or speculation in the claim of $500 a day for thirty days. The only thing the jury had to do in respect to that claim was under the charge of the court, and upon the whole evidence in the case, to determine how many days short of the five months, the plaintiff did complete this elevator in, or could have completed it if the foundations had been ready as agreed.

The amount, per day, was fixed by the agreement of the parties, at $500. Hence, to ascertain the amount the plaintiff was entitled to in this respect, was simply to take the number of days which had been saved, and might have been saved from the whole period of five months in the construction of the building, which was thirty (as found by the jury), and multiply that thirty by five hundred, and to cast the interest upon that product, from the commencement of the suit until the day of the trial. That certainly was not a difficult thing to do, and there was no element of uncertainty about it, except the number of days they should determine, from the evidence, had been saved from the five months. The other claim, which was fixed by the verdict of the jury, at $802, did not contain a great many elements of uncertainty, for every element could be established quite accurately and plainly by the evidence in the case. The plaintiff, by himself, and his witnesses, were called upon, and stated how much less work would have been required, or how much more expense attended the beginning and progress of the work for the first few days, on account of the unpreparedness of the foundations. That could be easily arrived at by any one who was familiar with that kind of work, and as the work was done by the plaintiff’s workmen in the presence of numerous others who were competent to testify, and as they were the witnesses who gave evidence, and as there was nothing about it but that was visible and capable of easy calculation, it would not seem to have been the case, there were many elements of uncertainty, and that were speculative, involved in the ascertainment of that amount; and that amount having been ascertained, the computation of the interest was, of course, within the qualification of every juror.

It seems to me that there are many cases reported in which interest from the commencement of the action has been allowed and approved by the court, where the elements of uncertainty were much more numerous and of much more difficult ascertainment.

The cases referred to, and relied upon by_ appellant’s counsel, were cases in 108 N. Y., 557, and in White v. Miller, 71 N. Y., and the same case cited again at 78 N. Y., 393.

In those cases, interest was not allowed, for the reason that the demand was unliquidated, and was so dependent upon various uncertain and speculative elements, that the court was unwilling to allow it in those cases.

The latter case was an action to recover damages for a breach of warranty in the sale of cabbage seeds. They had been sold and represented upon the sale to have been seed of a particular kind, and that they would produce a crop of a certain character. It turned out that the seed were defective, of a different kind, and did not produce the crop which the party sought to raise. The plaintiff sought in that action to recover the difference in the value of the crop as raised from imperfect seed of a different character, from the value of a crop such as would be produced from the seed of another kind which he sought to purchase. The court allowed him to recover that difference, but the- court held that inasmuch as there were such elements of uncertainty in it, such as the weather, the kind of soil, the r.ains and drouths, etc., etc., that there were too many elements of uncertainty in it to allow interest in such a case or upon such a recovery. In the other case cited by appellant’s counsel, the case of McMaster v. State of New York (13 N. Y. State Rep., 674) was a claim arising from the breach of a contract to construct a number of public buildings for the state in the city of Buffalo, thirteen in number. The contractor was to furnish and dress the stone, and deliver them upon the premises, and after he had done so in sufficient quantity for some six or seven of the buildings, the contract was broken by the other side. He sought to recover his damage by reason of his being compelled to abandon the contract. The court in that case held that as there entered into the damage which he got an award for, such uncertáin elements, to wit, how much he would have made if he had been allowed to go on and finish the construction, the cost of the stone and dressing of them; the value of the stone which were left upon the ground at the time the state abandoned the contract, and more especially, because there was involved in that ascertainment of damages the time which he would save, and the work and labor and responsibility which were saved him from completing the job, that those constituted too uncertain elements in a case of unliquidated damages to warrant the imposition or allowance of interest. But in a numerous class of cases, it seems to me the court has allowed damages, either directing it as a matter of law in a class of cases, or submitted it to the discretion of the jury in other cases in the nature of compensation or indemnity.

And such cases are to be found in McMahon v. N. Y. and Erie R. (20 N. Y., 463); in the case of Van Rensselaer v. Jewett (2 N. Y., 135); the case of Parrott v. Knickerbocker and New York Ice Cos. (46 N. Y., 361). In the latter case the court approved of the action of the judge in leaving the question to the jury, whether the allowance of interest was not necessary in order to give the plaintiff proper and just compensation. The claim on which the principal interest was allowed was for services, or in the nature of services, or extra services, rendered by the plaintiff for the defendant, and the courts have gone by recent decisions, and should go beyond the earlier decisions for the purpose of indemnifying the party who has kept his contract against loss occasioned the party breaking it.

We have carefully studied the very able brief of appellant’s counsel, and we have been unable to perceive, either in the reception or rejection of testimony, or in the charge to the jury, any violation of well settled principles in this class of cases, or any departure from the principles laid down in this case on the former appeal in the able opinion of Judge Ruger, in this court.

We have also looked with some degree of care to the exceptions to evidence and to the judge’s charge, and have pursued them and examined them far beyond the contention claimed in the brief before us by appellant’s counsel upon this argument, and we do not perceive any error that should justify another trial of this action.

I think that the allowance of interest from the time of the commencement of the action to the day of the trial was proper, and the judgment should therefore be affirmed, with costs.

All concur, except upon question of interest, upon which question all concur with Bradley, J., except Potter, J.

Bradley, J.

I think the defendant’s exception was well taken to the submission to the jury of the question of interest upon the amount of damages they should find against the defendant. The action was to recover for breach of contract. In such cases, whether interest is recoverable does not rest in the discretion of the jury, but is a question of law for the court, which, in actions sounding in tort when the recovery of interest is permissible, it is, with some t exceptions, a question for the jury. Duryee v. Mayor, 96 N. Y., 478. The rule upon the subject may appear to have been involved in some uncertainty, but now it seems to be reasonably well defined in this state. In McMaster v. The State (108 N. Y., 542; 13 N. Y. State Rep., 574) the claim was for damages founded upon a breach of contract for the supply of materials for the services in the construction of a public building. The damages resulted from the refusal of the state to permit the contractor to proceed with the work to its completion, as provided by the contract. And such damages consisted of a loss of profits which would have been realized by performance of the work at the contract price. The court held that interest was not allowable even from the time of the commencement of the action or proceeding, because the claim was unliquidated, and there was no possible way for the state to adjust the same, and ascertain the amount which it was liable to pay.” And reference was made to White v. Miller, (71 N. Y., 118; 78, id., 393). That was an action to recover damages resulting from breach of warranty upon sale of a quantity of cabbage seed. The referee, on the first trial, allowed interest upon the damages from the time the crop would have been harvested. The court held that was an error, for the reason that “the demand was unliquidated and the amount could not be determined by computation simply, or reference to market values.” 71 N. Y., 134. On the next trial the plaintiffs were allowed to recover interest upon the amount of- damages from the time of the commencement of the action. This was held to be error.

And after reviewing many prior cases on the subject, the court by Earl, J., remarked, that some of those cited “ tend to show that where an account for services or for goods sold and delivered, which has become due and payable in money, although not strictly liquidated, is presented to the debtor and payment demanded, the debtor is put in default, and interest is set running; and that, if not demanded before, the commencement of a suit is a sufficient demand to set the interest running from that date. But there is no authority for holding in a case like this, where the claim sounds purely in damages, is unliquidated and contested, and the amount so uncertain that a demand cannot set the interest running, that it can be set running by the commencement of the action. * * * The claim is no less unliquidated, contested and uncertain. The debtor is no more able to ascertain how much he is to pay. * * * The conditions are not changed, except that the disputed claim has been put in suit, and there is no more reason or equity in allowing interest from that time, than from an earlier date.” 78 N. Y., 399.

The judicial reason thus stated for the rule applied in that case is applicable to the present» case and is no less applicable to the damages awarded by way of per diem allowance for the time the jury found the plaintiff and his associate would have completed the work in advance of five months if the foundation had been completed on June 22, 1876, than the other class of damages allowed to the plaintiff. The alleged breach of contract was that when the stipulated notice was given, the foundation was not ready for the superstructure, which the plaintiff’s firm agreed to erect upon it. And while they were not required, they were permitted, to proceed and charge the defendant with such damages. Mansfield v. N. Y. C. and H. R. R. R. Co., 102 N. Y., 205; 1 N. Y. State Rep., 390.

Whether they could and would have completed the work in less than five months, if the foundation had been entirely ready when the notice was given, and if so how many days in advance of that time, were questions of very much uncertainty as appears by the evidence, and so much so that there can be assumed to have existed no basis upon which the defendant could have made any estimate with a view to any adjustment of the amount as between it and the plaintiff.

The alleged claim was unliquidated, and as uncertain in amount as any can well be conceived to be. It was necessarily in some sense speculative, as it involved the consideration of causes, the presence or absence of which could not be demonstrated, bearing upon the ability or inability of the contractor to do the work within any certain time if they had been permitted to proceed with the utmost economy and advantage within five days of the time when defendant’s notice was given. This breach of the claim for damages was not for services, but was sought to be obtained, and was recovered as prospective profits of which the plaintiff was deprived by the breach of the contract. And it was no less unliquidated for the purpose of the question now under consideration than it would have been if there had been no stipulated per diem allowance provided by the contract for the diligence of the contractors in doing the work. The amount of such claim for damages was entirely uncertain, and was closely contested .by the defendant. So much so that a verdict for the defendant upon that breach of the case would have been supported by the evidence. This question of interest seems clearly to come within the doctrine of the case before cited, and should have been excluded from consideration on the trial. And in view of the reason for the rule, and the rule itself, so announced, the cases cited by the plaintiff’s counsel do not support his proposition in this respect. In Parrott v. Knickerbocker, etc., Ice Co. (46 N Y , 361); Mairs v. Manhattan, etc., Assn. (89 id., 498); Walrath v. Redfleld (18 id., 457); Duryee v. The Mayor, etc. (96 id., 477), the actions were in tort, and "the question of interest was for the jury. In Van Rensselaer v. Jewett (2 N. Y., 135) the action was for rent, payable in specified articles with no sum men-

tioned, and Dana v. Fiedler (12 N . Y., 14) was brought to recover damages for non-delivery of a quantity of madder, pursuant to contract. In both these cases the market values of the property at the time stipulated for delivery, the defendants had the means of ascertaining, and therefore when in default and required to perform, they were able to ascertain by computation the amount to which the plaintiffs were entitled. The court held that they were entitled to recover interest.

In McMahon v. N. Y. and E. R. R. Co. (20 N. Y., 463), the action was to recover for work performed and materials furnished by the plaintiff in construction of the defendant’s road. The defendant had refused to have measurements made by its engineer, which was a condition precedent to payment. The court referred to the doctrine of Van Rensselaer v. Jewett, and by Selden, J., said that the court there went as far as was reasonable to go, and held that interest was aliowabte upon the ground that defendant was in default for not having taken the requisite steps to ascertain the amount of the debt. In McCollum v. Seward (62 N. Y., 316), and Mercer v. Vose (67 N. Y., 56), the actions were to recover the amount due for services upon the quantum meruit. The claims were unliquidated, and the recovery of interest from the time of the commencement of the action was sustained. The former of the last two cases was decided upon authorities there cited, and was followed by the other. The doctrine of that line of cases is that in actions for services rendered or goods sold, etc., when the debtor is in default for not paying pursuant to his contract, the creditor is entitled to interest by way of damages. Newell v. Wheeler, 36 N. Y., 244; Mygatt v. Wilcox, 45 id., 306. And that is upon the theory that the amount may be known or ascertained and computed, actually or approximately, by reference to market values. Sipperly v. Stewart, 50 Barb., 62; Van Rensselaer v. Jewett, 2 N. Y., 135, 140; De Lavallette v. Wendt, 76 id., 579.

There may be cases, from the nature of which it appears that this cannot be done, to which the rule allowing interest is not applicable. Smith v. Velie, 60 N. Y., 106; De Witt v. De Witt, 46 Hun, 258. And, so far as I have observed, it has not been extended to actions to recover unliquidated damages for breach of contract, unless the means are accessible to the party sought to be charged, of ascertaining the amount, by computation or otherwise, to which the other party is entitled. This case cannot be brought within the rule which renders the recovery of interest permissible. My conclusion is that the plaintiff was erroneously allowed to recover interest, and that the judgment should be modified accordingly. All concur, except Potter, J.  