
    William H. Morrell, Pl’ff and Res’pt, v. The Long Island Railroad Company, Def’t and App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 7, 1889.)
    
    1. Facts found by the jury are not subject of review on appeal.
    A question of fact found by a jury cannot on appeal be the subject of review.
    3. Contract—Breach of—Measure of damages.
    On a breach of contract for not filling in a depot site on meadow land of plaintiff, the measure is the fair cost of filling in the site as stipulated.
    3. Same—Measure of damages for breach of contract must be based upon proximate injuries and not upon those which are remote
    FROM OR ULTERIOR TO THE CONTRACT.
    Where the plaintiff contracted with a railroad company that he, on his part, would procure the privilege for the company to take earth from a certain designated place on the line of the road, and the company agreed that it would fill in the trestle work on which its tracks were laid across a meadow, along the boundary of plaintiff’s meadow land—and there was a breach of such contract on the part of the company—the measure of damages is such damages as followed naturally and approximately from the breach, and were within the contemplation of-the parties as likely to result therefrom, and not what it would cost to bring the earth and _ build an embankment which would keep the water from flowing upon plaintiff’s land from other meadow land on the opposite side of the trestle work, as defendant did not contract to build an embankment to keep the water from plaintiff’s land, but only to fill up the trestle work.
    
      Appeal from a judgment of the general term of the city court of New York affirming a judgment entered upon a. verdict of a jury at a trial term of the city court.
    The plaintiff is the owner of a tract of salt meadow land, near Flushing, Long Island, on the easterly side of which, the tracks of the defendant run upon trestle work. The plaintiff was desirous of having this trestle work filled in, believing that it would prevent the water from flowing-over his land from the opposite side of the track. He had several interviews with officers of the railroad company in regard to the matter, one as far back as 1882.
    In 1886 a verbal contract (so the jury found) was made between plaintiff and Mr. Barton, the general superintendent óf the company, by which it Was agreed that if the plaintiff would procure permission for the company to take earth from a designated place on the line of the road, the.-, defendant would haul the earth and fill in the trestle work, and also lay the foundations for a depot site partly on plaintiff’s and partly on defendant’s land. The plaintiff' afterwards procured from the owner of the said ground permission for the company .to take the requisite earth, and the company took the earth accordingly, but did not use all of said earth for filling in the trestle work at the place-agreed upon, but filled in much of the space with cinders ■ and ashes, claiming that the use of cinders and ashes was necessary in that case, as the use of earth on the meadow might, from its weight, swing the tracks out of position. The defendant also did not lay the foundation for the contemplated depot site.
    On the trial of the action, the trial judge (Brown), after explaining to the jury the meaning of a contract, and leaving to the jury the question whether there was a contract made between the parties, by which the company agreed to fill in the trestle-work, and also to lay the foundation for a depot site, charged the jury as follows:
    “If the testimony on the part of the plaintiff, is such as to satisfy your mind, by its preponderance, that the contract stated by Morrell, was made, and that this earth was-to be used for the purpose stated by him, the next question will be whether there was a performance; and in considering this you will say, was the contract not only to fill in between the trestle, but to fill the depot site. If it was not for both, you may sever the claims, and consider only the-question of performance and damages to those parts of the contract which you accept as established. If you find that it was both to build the depot site and to fill the trestle, it is in evidence that the foundation for the depot site was never attempted to be laid.
    “ The next question is how far was the contract made-with refererece to filling in the trestle-work carried out ? I will observe, gentlemen, that Mr. Morrell’s claim with respect to that, makes the question of damages, which I will present to you later on, one of considerable legal interest. However, the court will assume a position that will relieve you of any responsibility with respect to it, leaving The question of whether I am right in the rule I present for further consideration. The plaintiff claims that he expressed a desire to have the trestle-work filled in with that particular earth, and his desire to have this done was to prevent the overflow or percolation of water from the north side of the land of the railroad company upon his land, which was situated on the south side.
    “Was that accomplished ? There is no evidence in this case, that the trestle-work, wot. to be filled up level with the railroad track, and there is nothing in the case that presents anything for your consideration on the question of performance, except the one fact as to whether the trestle-work was filled sufficiently to prevent the water from flowing in upon the land of Mr. Morrell, upon' the south side. If that was done and that was accomplished by the railroad company, then Mr. Morrell, would have no, cause of complaint, nor any right to recover damages for failure to do that because all that he expressed to the railroad company, as the reason why he wanted it there, was accomplished by what they did.
    He was to direct the railroad company as to the manner in which they should use the earth from Bogert’s place. The question is, did they put in an embankment there sufficient to keep the water, with this earth or any other earth, from the north side from flowing on to Mr. Morrell’s land ■on the south side? If they did, he cannot get any damages by reason of their failure to put the exact earth that was Taken from Mr. Bogert’s place upon that. And you will remember the evidence upon both sides. Mr. Morrell says it was not filled so as to accomplish the object. Some witness on the other side says that in some places the earth is all level with the railroad track, and estimated that for a -space of five hundred feet, more or less, that it is four or five feet deep in some places, and there is a ledge of earth .running along under the trestle-work. This is a question of fact for you as to how far they have accomplished the expressed object of Mr. Morrell, that is, keeping the water - from his land by an embankment made over the trestle-work. Now if you find there was any failure or non-performance in that, and you should find the verdict should he in favor of the plaintiff, the next question is one of damages.
    Ordinarily the rule of damages for a breach of contract is that which flows directly from the breach, or, in other words, the reasonable expense which a party would be put to to do that which the other agreed to do, but failed to do. It is a somewhat difficult proposition in this case to present fairly that rule, for this reason, that Mr. Morrell would have no right to enter upon the lands belonging to the railroad company without an express license from them to do so, and construct that embankment by emptying the earth between this trestle-work (if they did not want to do that); but he would have the right to put up an embankment upon his own land, or adjoining their land, to accomplish the same object that would have been accomplished it the company did that which they agreed to do, in case you should find they made this agreement.
    “Now if there was evidence, if land was lost to him by reason of building this embankment or ditch, or by any ■other construction that was necessary to accomplish this object, it might be considered by you, but the only evidence we have is that there was a space of five hundred or more or less feet, as you fix this space, that was to be filled, and that it cost so much money to carry earth, or to bring earth, from other places where it could be obtained nearest to it to that particular place to build or complete that embankment.
    “That being the only evidence, it will be for you to consider what it would cost to bring the earth and build an embankment which would keep the water from flowing in upon his land, because that was the ulterior object of his contract, and fix the measure of damage upon the basis of what it would cost to build or complete the embankment, including earth and labor, and that is the only rule I can see applicable, from the testimony, upon which you can intelligently base any measure of damages in favor of the plaintiff.
    “The same general rule does not apply to the depot site. As to the depot site he was not to advantage by it by reason of any trains stopping there or any trains to stop, nor was it understood that the company was to erect the depot for him, he agreeing to do that, and, as he testified, it was to be partially upon his land. There could be no loss or damage by reason of the occupation of any portion of his land that was intended for the depot, because he had devoted that much of it toward the construction of this depot site, and it was possible for him, as he states, to construct that depot site upon his own land, and he would take the chance of having a switch run in there. Now, if this earth, for which he got the license for the railroad to remove (if he did get it for them), was used for other purposes and not used for that, he would be entitled to» recover the value of the earth which would be necessary to construct the depot site. That is to the reasonable cost of bringing earth to that particular place and the reasonable1 cost of the labor in placing it there for the purpose of building a depot site.”
    The jury brought in a verdict of §1,000 for the plaintiff.
    
      Hinsdale & Sprague, for app’lt.
    1. The trial judge erred in charging the jury, as the measure of part of his damages, that plaintiff might recover the cost of building such an embankment upon his own land as would prevent the1 flow of water. The rule of law which the court intended to apply allows the plaintiff, in a proper case, to recover the cost of doing the specific thing which the defendant had agreed but failed to do. Now, there is no pretense here1 that defendant had entered into any agreement with the plaintiff to prevent the water from flowing upon his land. The agreement made by Barton, the defendant’s superintendent, as detailed by plaintiff himself, was to use the earth for filling the trestle until he should meet with difficulty by the settling of the meadows. Plaintiff believed that the filling up of the trestle would prevent the overflow of water on his1 land, but it nowhere appears that Barton expected such a result.
    That portion of the charge was wrong-, for the further reason that there was no evidence in the case to which it could be applied. The cost of building such an embankment would depend upon its dimensions, and there was no-proof from which the jury could determine the length, breadth or height of such an embankment as would serve1 the purpose. The rule requiring evidence of the amount, and extent of damages is familiar. See Staal v. Grand Street and Newtown Railroad, 107 N. Y., 625: Leeds v. Met. G. L. Co., 90 N. Y., 26.
    Nor is this view answered by the argument of plaintiff’s, counsel, that since the case does not affirmatively show that all the evidence was included, the court cannot assume that the evidence on this point was lacking. A statement'that the case contains all the evidence, is only important when the appellant desires to review. questions of fact. An exception appearing in the proposed case serves as a notice to tbe respondent of an intention to raise the question of error in the ruling excepted to, and puts upon the respondent tbe-. responsibility of adding by amendment, any needed proof. Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479.
    The general term of the city court refused to consider the point now made by the defendant, upon the ground that the-amount of the verdict is not to be “ questioned upon this, appeal, as the defendant objected below only generally toi the right of plaintiff to have a verdict at all, and wholly failed to raise the specific question as to its correct amount; ” and cited Tuers v. Tuers, 100 N. Y., 202. But this case does not sustain the position. Here we ask for reversal, because the amount of the verdict was reached by the application of -erroneous rules to which we excepted. An exception to an instruction as to the measure of damages, brings the question of the amount of the verdict to the appellate court for review.
    
      2. The court erred in instructing the jury as to the measure of part of his damages, that the plaintiff might recover the cost of the earth and labor required for filling in the depot site himself.
    
      Frank E. Blackwell, for resp’t.
    The' verdict was amply sustained by the evidence. The contract was made by the general superintendent of the road. By taking the benefit of plaintiff’s contract with Bogert, and by using the sand and gravel procured for them by the plaintiff, the defendant is estopped from denying "the authority of the general superintendent to bind the company.
    The rule of damages laid down by the court was the only part of the charge excepted to. The charge was right. The court fixed the damages at an amount which it would cost the plaintiff to build an embankment to keep out the water. Ho allowance was to be made to the plaintiff for the loss of his own land used for the embankment, but simply for getting the dirt there and keeping out the water. The rule was a severe one against the plaintiff. There was no pretense that the trestle, as filled in, did keep the water out, The embankment was defective because the material used was porous. The plaintiff was entitled to remedy the defect by the use of proper material.
    The cost of remedying it was the measure of -damages. Kidd v. McCormick, 83 N. Y., 391; Robinson v. Harman, 1 Exch., 855.
    The case does not contain all the evidence and does not so state. The only questions raised by exceptions to the charge were that the wrong rule of damages was stated. Ho point whatever was made that the evidence did not justify a recovery, and. this question cannot now be raised" here. Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479.
   Allen, J.

—The plaintiff, among other things, alleged in his complaint was owner certain premises near the village of Flushing, county of Queens, state of Hew York; that the defendant’s railroad ran along or near the easterly and northerly boundary of his lands over a trestle-work built for that purpose; that he was desirous of procuring sand and gravel to fill in .said trestle-work; that he entered into a contract with the . defendant, whereby he agreed to procure the necessary sand and gravel at a convenient place near the line of said road; that the defendant agreed to carry the same to said trestle-work, at a place designated by the plaintiff, and fill up said trestle-work as agreed; that the defendant further contracted to fill in upon the land of the plaintiff, at a place named by him, enough of said sand and gravel to make a depot site about one hundred feet square, and would also, if plaintiff secured a large factory at or near the proposed depot, put in a switch for his convenience; that in pursuance of said agreement, the plaintiff did procure said sand and gravel as in said agreement provided; that the defendant neglected and refused to carry out the said contract, and fill in the said trestle-work, and also neglected and. refused to make a depot site; that the defendant took all the earth so procured for it by plaintiff and used the same for its own purpose' at other points upon said road than that agreed upon between the parties; and for this alleged breach of contract the plaintiff claimed damages in the sum of $2,000.

The answer denies the making of any such contract, or any violation thereof; or, that any sand or gravel procured by the plaintiff was in pursuance of any contract with it or under its direction or at its request; with a further denial that any sand or gravel procured by the plaintiff had been used by the defendant.

The issue thus joined was brought to trial before a jury, who found a verdict in plaintiff’s favor for the sum of $1,000. Upon appeal to the- general term of the city court the judgment entered upon the verdict was affirmed, and from such decision of the general term this appeal was-taken.

The main question of fact involved was whether or not the alleged contract was ever made. The verdict of the jury has definitely settled this fact, and it cannot, on this appeal, be made the subject of review. On the argument of the appeal we understood the appellant to admit the making of the contract, its breach, and the right of the plaintiff to damages. His criticisms were confined to the rule of damages adopted by the court as applicable to the case,, and to which he had duly excepted.

We have no doubt that the rule applied by the trial judge in reference to the depot site, which was to be made upon the plaintiff’s land, was correct, and that the fair cost of filling in the depot site, as stipulated, was recoverable. Laraway v. Perkins, 10 N. Y., opinion of Johnson,. J., p. 373.

That part of the charge, however, which relates to the damages to be recovered for the failure to fill in the trestle-work appears to be erroneous.

The defendant having neglected and refused to fill in the trestle-work upon its railroad, as it agreed to do, the plaintiff was entitled to recover such damages as followed naturally and approximately from the breach and were within the contemplation of the parties as likely to result therefrom. The fault of that portion of the charge which deals with the question of damages for the failure to fill in the trestle-work is, it seems to us, that it erroneously assumes that the contract was different from what it actually was, that the railroad was liable if the filling in of the-trestle-work did not exclude water from the plaintiff’s land and make it dry. The whole scope of the charge on this branch of the case is that the railroad company was bound to make the plaintiff’s land dry. That was not the contract. The defendant did not agree to build an embankment that would keep the water from the plaintiff’s land, but agreed to fill in the trestle-work with sand and gravel from the bank of earth owned by Mr. Bogert. It was therefore error, we think, to submit this part of the case to the jury upon the theory that the defendant had contracted to keep the water from the plaintiff’s land.

For the reason above stated the judgment should be reversed and a new trial ordered, with costs to the appellant, to abide the event.

All concur.  