Ashe v. DeRossett, 50 N.C. 299, 5 Jones 299 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 299, 5 Jones 299

WILLIAM S. ASHE v. A. J. DeROSSETT, Adm’r of SAMUEL POTTER.

Where it was agreed between the owner of a rice mill and a planter, that if the latter would bring his rice to the former’s mill, it should have a priority in being beat, to whicn he, the owner, had become entitled, and it was not so beat, but was kept in the mill to await another turn, and, before it was boat at all, the mill and the rice is question were consumed by fire, it was Held that damages for the loss of the rice could not be assessed for the breach of this contract.

The notes of an attorney taken on a former trial of the same cause, which he swears he believes to be correct, though the witness does not fully remember the evidence, are admissible.

ActioN of assuMpsit, tried before Person, J., at a special term, (Jan’y, 1858) of New-TIanover Superior Court.

The defendant’s intestate was the owner of a rice mill, and the plaintiff sent his rice to be beat. It was proved that the usual custom of the- mill was to talco one tenth as toll, and to beat eacli man’s rice in turn, fifteen hundred bushels being considered as a turn, and, while at the mill, the owner of the rice was to run the risk of loss by fire, occurring without blame on the part of the bailee. There was- not evidence of negligence, but there was evidence going to show that Potter told Ashe, the plaintiff, that he, as the owner of the mill, was entitled to a turn, which would soon come ’round, and that the- latter might bring his rice to- the mill and he should have it beat in that turn.. Upon which the- plaintiff took his rice to the mill, but it was not worked on. at that turn, and after that turn,, the mill and contents, including the rice in question,, were consumed by fire. It ivas for this failure and refusal to beat the plaintiff’s rice according to- the contract, that this suit ivas brought, and the plaintiff insisted upon the value of the rice destroyed as the measure of the damages.

The defendant, among various other objections, opposed the demand for damages for the loss of the rice, as not being the consequence of the breach of contract relied on.

His Honor ivas of opinion, if a breach of the contract had been established, that the loss of the rice being a natural consequence, was the proper measure of the plaintiff’s damages, and so instructed the jury. The defendant excepted.

Upon the trial, Mr. Wright,, a gentleman, of the bar, was tendered to prove what a deceased witness had proved on a former trial of this suit. Mr. Wright had managed the cause on that occasion, and took notes of the witness’ evidence. Tie-said he did not then recollect the substance of the whole of the witness’ testimony, bu-t that to- the best of his knowledge and belief, his notes, taken- at the trial, contain- the substance of all the deceased witness then swore. The plaintiff’s counsel then offered to read the notes, which was objected to by the defendant, but admitted by the Court. Defendant excepted.

Tbe plaintiff'liacl a verdict for the whole value of the rice-destroyed» Judgment and’ appeal' by defendant.

Strange and W. A. Wright, for plaintiff!

E. Q. Maywood and London, for defendant.

Pearson, J.

The defendant’s counsel contended that the' plaintiff could not recover, in respect to the burning of thence, because the injury was too remote. Ilis Honor was of a different opinion. There is error.

Where one violates his contract, he is liable only for such, damages as are caused by the breach ; or such, as being incidental to the act of omission or commission, as a natural consequence thereof, may reasonably be presumed to have been in the contemplation of the- parties when the contract was made. This rule of law is well settled, but the difficulty arises in making its application. In regard to that, we differ-with his Honor. There is nothing to show that the contingency, that the rice might be burnt if left in the- mill, was in. the contemplation of the parties. On the contrary, its being-burnt was an accident unlooked for, and unforeseen, and can,, in no sense, be considered as having been caused by the fact,, that it was not beat in the turn promised by the defendant’s, intestate, consequently the damages were too remote, and the-jury ought not to have been allowed to include the value of the rice in estimating damages for the breach of the promise ; Boyle v. Reeder, 1 Ire. Rep. 607 White v. Griffin, 4 Jones’ Rep. 139.

Jones v. Ward, 3 Jones’ Rep., 24, is an authority for the-admissibility of the evidence which was objected to.

As the case goes back for a new trial, it may be well to-call the plaintiff’s attention to the point, that, although the declaration sets out a sufficient consideration to support the-promise sued on, no evidence in support of the- alleged, consideration is set out in the statement of the case..

Fee CueiaM, Judgment reversed, and a venire de nfwo.