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(75 Hun, 227.)

DEPEW V. KETCHUM et al. (Supreme Court, General Term, Fifth Department. January 18, 1894.) MEASURE OF DAMAGES-SURRENDER OF LEASE.

A lessor reserved the right to sell the premises at any time during the term, and agreed to pay any damages which the lessee might sustain by reason of a sale. The lessee, on his part, agreed to surrender possession in case of a sale. Held, that the lessee's damages, in case of a sale and surrender, were measured by the capacity of the farm to yield a profit when worked under the lease in question. Appeal from circuit court, Yates county.

Action by Romane Depew against Edina Ketchum and others. From a judgment entered in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendants appeal. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.

E. Hicks, for appellants. · C. W. Kimball, for respondent.

DWIGHT, P. J. The plaintiff took the farm of the defendants to work on shares for a term of five years from the 1st day of April, 1891. The contract was in writing, and contained the following provision:

“The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to surrender possession of the same on the first day of April in any year of said term, in case said sale is made; and the parties of the first part agree to pay any damages that the party of the second part may sustain by reason of a sale, said damage to be determined, if the parties cannot agree, by each party selecting a man who shall assess the damages."

Under the right thus reserved, the defendants made a sale of the farm during the first year of the term, and the plaintiff, in performance of the same provision of the contract on his part, surrendered the possession on the 1st day of April, 1892. Shortly afterwards, he called upon the defendants to select a person, on their part, to act as appraiser of his damages, and, upon their declining to do so, he brought this action. The action was for the value of that portion of the term which was surrendered by the plaintiff; and this, we have no doubt, he was entitled to recover, under the terms of his contract. The defendants' right to sell the farm during the term is reserved on the condition that they pay the plaintiff his damages thereby, and the plaintiff's agreement to surrender the possession is on the condition that he be paid such damages. The defendants' obligation, under the contract, to pay damages, is as binding as if it arose from a violation of the contract on their part. The only question in the case is, therefore, what are the damages to be paid, how ascertained and how measured? The contract says, "any damages that the party of the second part may sustain by reason of a sale." That means any damages directly or proximately consequent upon, or resulting from, a sale. And that the loss of his term of the rights and privileges which he would otherwise have

enjoyed during the term-is to be mainly the basis of such damages cannot well be doubted. And what are those rights and priv. ileges? Clearly, among others, the right and privilege to work the farm for four years or more, and to make out of it all the gain and profit which it was capable of affording. The measure of the plaintiff's damages, then, is the value of the term surrendered; and the value of the term depends upon the capacity of the farm to yield a profit to the man who works it under the contract which the plaintiff held in this case. Granting (what we have assumed) that the liability of the defendants is the same under a contract by which they stipulated to pay damages in case of a sale as it would have been had they made a sale in violation of the contract, then the case of Taylor v. Bradley, 39 N. Y. 129, is authority for the plaintiff's contention upon nearly every question arising in this case; and its doctrine is, in great measure, reaffirmed in the case of Wakeman r. Manufacturing Co., 101 N. Y. 205, 4 N. E. 264. Both of these were cases of damages resulting to the plaintiff from a breach of the contract. In the former of them the contract was of the same character as in this case, viz. the letting of a farm to work on shares; and the court held, in an elaborate opinion by Woodruff, J., that the plaintiff was entitled to recover as damages the value of his contract, i. e. what such a privilege of occupying and working the farm was worth, subject to the conditions of the agreement, and under all the contingencies which were liable to affect the result. "His damages are what he lost by being deprived of his chance of profit.” Also, that such damages might be recovered immediately upon the refusal of the defendant to perform the agreement.

And in the case of Wakeman v. Manufacturing Co., the same rule was applied to the estimate of damages for the breach of a contract to give the plaintiff the exclusive privilege to sell machines in certain territory, and to furnish him the machines for such sales as he should make therein. Both of these cases are very instructive in respect to the limitations to be put upon the rule that speculative and uncertain damages cannot be recovered; and, at least in the latter of them, the admission of evidence was approved, which showed something of the extent and profit of the plaintiff's business, so far as he was enabled to prosecute it, as tending to show what it might have been in case of full performance of the contract on the part of the de. fendant, and that the case was not one for expert or opinion evidence as to what machines might have been sold, and what profits made. The rule of the latter case, as to the allowance of prospective profits and the mode of estimating them, was adopted in Dart v. Laimbeer, 107 N. Y. 664, 14 N. E. 291. This case was, we think, submitted to the jury in a charge very carefully in accord with the principles established by the cases above cited. The jury was instructed that the profits of the year during which the plaintiff had the benefit of his contract were not to be taken as the measure of the profits which might have been realized in the four succeeding years, but as facts which might aid the jury in estimating the value of the contract, one year with another; and it would seem that, under the careful instructions of the court, the jury did not go very far astray

into the region of speculation and conjecture. Their verdict was for $1,500, which fixes the value of the plaintiff's contract at $375 a year; not an extravagant profit to be realized over and above the expenditures of labor and care, enterprise and responsibility, in. volved in the management of a farm of 234 acres of fertile and highly-improved land. We find no error in the case which should vitiate this verdict. The judgment and order appealed from should be affirmed. So ordered. All concur.

(75 Hun, 246.)

OSBORN V. DELAFIELD et al.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) FACTORS AND BROKERS— VIOLATION OF INSTRUCTIONS TO SELL.

Where a consignor directs his broker to sell the goods consigned at a price that will pay advances made by the broker, and the freight and commissions, and the broker sells for less than such amount, the consignor has no right of action against the broker, as he sustained no loss by the violation of his instructions.

Appeal from judgment on report of referee.

Action by J. Clarence Osborn against Clara Delafield and others. From a judgment entered in Cayuga county in favor of defendants, plaintiff appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
Louis E. Fuller, for appellant.
E. M. Wells, for respondents.

DWIGHT, P. J. On the 24th of November, 1891, the plaintiff, at Port Byron, in Cayuga county, consigned to the defendants, commission merchants at New York city, 200 boxes of evaporated apples, to be sold for his account, and received from them an advance, on the consignment, of $500. The defendants also paid freight and other charges on the shipment, which, with their commissions on the sale finally made, amounted to the sum of $72.75. The market for the goods seems to have been a falling one, and, after some correspondence between the parties in respect to the price at which they should be sold, the plaintiff finally, by the letter of April 12, 1892, consented to a sale of the apples—to quote the language of the letter—"at a price that will pay you what you have paid me, and your freights and commissions."

On the 28th of April, the defendants, without further communication with the plaintiff, sold the apples for a price less than that limited by the plaintiff's letter of April 12th, and rendered to him an account of sales, which charged him with the amount advanced, with interest, and freight and other charges, and with their commissions, and credited him with the amount received for the apples. The statement exhibited an apparent balance due them of $138.34, for which they drew on him at sight. The plaintiff did not pay the draft, but he brought this action, in which he claimed to recover from the defendants the difference between the price limited by his letter of April 12th and the

price at which the apples were sold. Upon his own theory of the case, the action was ill advised. He might well have rested content with his advantage, and have permitted the defendants to bear the loss which they had themselves incurred by selling the consignment for less than their advance and expenses. Certainly, the plaintiff had sustained no loss by the violation of his instructions, for he had already received, or had the benefit of, the full price at which he had authorized the sale to be made, viz. the amount advanced by the defendants on receipt of the consignment, and their expenses and commissions. The facts above recited are found by the referee, mainly as requested by the plaintiff, and his conclusions of law and direction for judgment are well founded thereon. The judgment entered accordingly must be affirmed.

Judgment appealed from affirmed. All concur.

red accor judgment the plaintiff Ted

(75 Hun, 231.)

SMITH v. BOWN.

(Supreme Court, General Term, Fifth Department. January 18, 1894.)

1. MUTUAL BENEFIT INSURANCE-LIABILITY FOR ASSESSMENT.

The by-laws of a co-operative assessment insurance company provided that the certificate of membership should contain the specified terms of the contract between the association and the member. A certificate provided that it was issued in consideration of the representation contained in the application, and the sum of $25, and the further sum of $5.60, to be contributed bimonthly. Held, that there was a contract obligation on the part of the member to pay bimonthly $5.60, which could be

enforced at law. McDonald v. Ross-Lewin, 29 Hun, 90, followed. 2. SAME-ASSESSMENTS.

Where a certificate of membership requires the periodical payment of a certain sum by the member, such payment is not an assessment, within Laws 1883, c. 175, requiring that "each notice of assessment * * * shall truly state the cause and purpose of such assessment," and shall also “state the amount paid on the last death claim paid, the name of the deceased member, and the maximum face value of the certificate or policy, and if not paid in full, the reason therefor."

Submission without action of a controversy between Frederick W. Smith, executor, as plaintiff, and George G. Bown, as defendant, under Code Civil Proc. $ 1279. Judgment for plaintiff.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Wm. De Groff, for plaintiff.
P. M. French, for defendant.

DWIGHT, P. J. The controversy here submitted is between the receiver of a dissolved co-operative assessment insurance company, organized under chapter 175 of the Laws of 1883, and one of its members, and presents the question whether by becoming such member the defendant contracted a liability to pay dues and assessments, which can be enforced at law; or whether, on the other hand, his liability was limited to a forfeiture of his membership on his neglect or refusal to pay. The question, of course, is one of con

tract, and the inquiry is, what was the contract between the parties? The only reported case in this state in which the question of liability to pay was directly adjudicated was that of McDonald v. Ross-Lewin, 29 Hun, 90, which was a case in our own department in 1883. In this case the court found a contract to pay, and held the member liable to an action to recover the first of the assessments on which he made default; but held that his default at the same time worked a forfeiture or termination of his membership, and that he was not liable to pay any further assessments. The defendant's application in that case contained the clause: “And in case a certificate is granted on the statements and good faith of the above declarations, I hereby agree to accept and pay for the same, subject to all the conditions of the by-laws and regulations of the association.” The only other case in this state in which the question of the member's enforceable liability to pay assessments was considered, though not involved in the action, was that of In re Globe Mut. Ben. Ass'n, 63 Hun, 263, 17 N. Y. Supp. 852. The question there presented was whether it was competent for associations of this character to insure infants. It was held not competent, and (by a majority of the court, in an opinion by O'Brien, J.) for the reason that there was necessity for a mutual contract between the association and the member, of which the infant was incapable; and the Case of Ross-Lewin, supra, was cited as authority for the proposition that there is a contract on the part of the member to pay his assessments upon which an action will lie. Van Brunt, P. J., dissented from the ground of the decision above stated, and expressed an opinion that the member assumed no obligation to pay, but that the extent of his liability was to forfeit his membership for nonpayment. In affirming the judgment of the supreme court, the court of appeals, in the language of Andrews, J., said: "We place our assent to the judgment below on the ground that it appears from a consideration of the statute of 1883, and the nature and object of co-operative insurance companies, and the relation which members hold to the corporation, that adult persons only were contemplated as or entitled to be members.” 32 N. E. 122. It is not made clear what the court consider to be the relation which members hold to the corporation, but the decision certainly does not condemn or disapprove the views held by the majority of the court below, nor the conclusion of the court in the Case of Ross-Lewin, supra. The latter case, therefore, stands so far unquestioned as authority, and we feel ourselves bound to follow it so far as the facts of this case bring it within the reasoning and the rule there adopted.

The only question here is, therefore, was there in the contract between the association and the member in this case a promise, either expressed or reasonably to be implied, to pay the assessment, so called, which is in question in this action ? And the first remark we feel inclined to make is that the payment in question was not in any true or proper sense an assessment at all, but a regular bimonthly due; the amcunt and time of payment of which were fixed at the outset by the contract between the parties, and which was to

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