Eva Schell, Respondent, v. Isaac Plumb et al., Executors, etc., Appellants

Eva Schell, Respondent, v. Isaac Plumb et al., Executors, etc., Appellants. (Argued January 21, 1874; decided February 3, 1874.) An. agreement by one party to support another during life is an entire continuing contract; and upon a total breach thereof, the latter may recover full and final, damages, i. e., not only the expenses of support up to the time of trial, but also the prospective expense during life. The right of recovery is the same whether the contract be by parol or is evidenced by an instrument under seal. Beach v. Grain (2 Com., 86) and Ferguson v. Ferguson (2 ¡N. Y., 860) distinguished. The ¡Northampton tables are competent evidence upon the question as to the probable duration of a life. Upon the trial of an action for an alleged breach by T. of a contract to support plaintiff during life, a witness called by defendant testified to conversations between the parties and admissions by plaintiff in substance that no such contract had been made. Upon cross-examination said witness was asked if he had not since said that plaintiff should have $1,000 out of T’s. estate? This the witness denied. Plaintiff thereupon, for the - purpose of discrediting said witness, offered and was allowed to prove, under objection, that he had so said. BM, no error, as it was equivalent-, to a declaration that the contract was made. Appeal from judgment of the General Term of the Supreme Court in the third judicial department, in favor of plaintiff, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict. This action was brought to recover damages for an alleged breach of a contract, made between plaintiff and Peter Thomas, defendant’s testator, by which the latter, for a valuable consideration, agreed to support the former during her life. Plaintiff’s evidence tended to show that such a contract was made, by parol, in Germany, in the spring of 1859, the plaintiff to render what service she could toward paying for her support, and that, in 1869, said Thomas turned the plaintiff away, and refused thereafter to support her. Upon the. trial, plaintiff’s counsel offered in evidence a table of life annuities, showing the probabilities of life, from the Northampton tables; this was objected to as immaterial and incompetent; objection overruled, and plaintiff’s counsel read therefrom the probabilities of life at sixty-seven, the age of the plaintiff. The court, among other things, charged the jury as follows: “ If you find she (plaintiff) was turned out in violation of the contract, without any misconduct on her part, then a cause of action is established, and your verdict must be for the plaintiff. “And the only question remaining for your consideration would be the amount of damages which she should recover for this breach of contract. You will first consider the amount, if any, that she should recover as damages for the period prior to this time. She was turned away, if at all, about the 1st of May, 1869, three years ago, and over three years has elapsed since she left his house. How much, if anything, should she recover for those three years ? “ If she has been abl'e; from- the time- she was turned from his house to the-present time, to support herself by her own earnings, then she has sustained' no damages up to this time, and nothing would be recoverable, because actual damages must be shown. But if she has not sustained herself by her own earnings, then you may allow her what difference there is between her own earnings and the value of her support from that day to this,, taking into consideration the time when she was sick, the-time when she was well, the labor that she performed, and the value of her services, and whether the value of her services were sufficient to more than, support her or not. “A more delicate question for your determination is: How much should be allowed her as damages for her future support and maintenance ? Tour verdict is. all she can ever recover, no matter how long, she may live. That ends the contract between these parties, and you will decide, considering her age, her health, her condition in life, and the circumstances under which she is placed, how long she will probably live, and how much services she can probably perform in the future, and say how much more it will cost her to support herself than she will be able, to earn, and allow: her to recover for such sum.” To all of which defendants’ counsel duly excepted. Further facts appear in the opinion. JD. L. Athyns for the appellants. Plaintiff could not recover future estimated damages. (2 N. Y., 97; 35 Barb., 579; Rhodes v. Baird, 16 Ohio St., 573; La Armistad, etc., 5 Wheat., 389; Griffin v. Colver, 16 N. Y., 489; 5 Lans., 524; Hickok v. Thurshie, 7 id., 425; Weller v. Eames, 2 Am. R., 150, and cases cited ; Gilbert v. Wiman, 1 Comst., 550; Aberdeen v. Blackman, 6 Hill, 324; Hayes v. Moynihan, 52 Ill., 423.) Damages in actions on contract are not to be guessed at or conjectured, but must be proved. (Rhodes v. Baird, 16 Ohio St., 573; Taylor v. Bradley, 39 N. Y., 129, 144, 145; Washburn v. Hubbard, 6 Lans., 14; Curtis v. Rochester, etc., 18 N. Y., 542.) Plaintiff could bring sucsessive actions, in which she could reco.ver actual compensation for actual loss. (Turner v. Hadden, 62 Barb., 482; Ferguson v. Ferguson, 2 N. Y., 360; Hambleton v. Vere, 2 Saund., 170, 337 ; 34 How., 450; Robinson v. Bland, 2 Burr., 1087; .10 Coke, 116; Rudder v. Price, 1 H. Bl., 550; Lewis v. Peachy, 1 H. & C., 518; Stone v. Rogers, 2 M. & W., 443; Bleecker v. Smith, 13 Wend., 530; Shadwell v. Shadwell, 9 C. B. [N. S.], 159; Beach v. Crain, 2 Comst., 86; Peck v. Redman, Dyer, 113; McConnell v. Kibbe, 33 Ill., 175; Berry v. Harris, 43 N. H., 376 ; Mayne on Damages, 35, 36; 2 Cow. Tr., 1011 [2d ed.], and cases cited; Covert v. Gray, 34 How., 450; Holmes v. Wilson, 10 A. & E., 503; Beckwith v. Griswold, 29 Barb., 291.) Plaintiff’s remedy was to compel specific performance. (Adderly v. Dixon, 7 R. I., 607; Davis v. Hone, 2 Sch. & Lef., 341; 1 Chit. Gen. Pr., 854; Rhodes v. Rhodes, 3 Sandf. Ch., 279; Marsh v. Blackman, 50 Barb., 329; Chubb v. Peckham, 2 Beas. [N. J.], 207; Sullivan v. Tuck, 1 Md. Ch., 59; Buxton v. Lister, 3 Atkyns, 385; Ball v. Coggs, 1 Bro. P. C., 140.) It was error to admit the Northampton tables in evidence. (35 Barb., 579; U. S. v. Hanson, 16 Pet., 196; Darby v. Ouseley, 36 E. L. & Eq., 518; Payson v. Everett, 12 Minn., 216; 5 Robt., 124; Fowler v. Lewis, 2 5 Tex., 380; Washburn v. Cuddily, 8 Gray, 430; Yoe v. State, 49 Ill., 410; 5 C. & P., 73; 3 Bos., 7; Tutton v. Darke, 5 Hurl. & Nor., 647; 4 B. & C., 292; U. S. v. Gilbert, 3 Sum. R., 70; 5 C. & P., 475; Pollard v. Smith, Peake, 18; Marble v. McMinn, 57 Barb., 610.) The question to the witness Harris, whether he had said plaintiff ought to have $1,000, was immaterial to the issue. (Elton v. Larkins, 5 Car. & Pay., 385; Holmes v. Anderson, 18 Barb., 420; City Bank v. Young, 43 N. Hamp., 457; Lane v. Bryant, 9 Gray [Mass.], 245; Hubbéll v. Bissell, 2 Allen [Mass.], 196 ; Rucker v. Beaty, 3 Ind. [Port.], 70; 2 Taylor Ev., 1252 [6th ed.]; 1 Grenl. Ev., § 449 [12th ed.]; Arch. Pl. & Ev., 479 [2d ed.]; Daniels v. Conrad, 4 Leigh, 401.) Plaintiff having cross-examined Harris as to • immaterial matter, was bound by his answer, and it was error to allow a contradiction. (2 Taylor Ev., 1243; Winton v. Meeker, 25 Conn., 456; Fletcher v. Boston, etc., 1 Allen [Mass.], 9; Carpenter v. Ward, 30 N. Y., 243; Plato v. Reynolds, 27 id., 586; State v. Staley, 14 Minn., 105; Sloan v. N. Y. C. R. R., 45 N. Y., 125; Roscoe’s Law of Ev., 189 [12th ed.]; Howard v. City, etc., 4 Denio, 502.) The question to Harris as to what he said to Robinson was immaterial. (Atty. Genl. v. Hitchcock, 1 Exch. [W., H. & G.], 91, 99 ; Combs v. Winchester, 39 N.H., 13; 2 Phil. Ev, 969, 970 [ed. 1859]; Gandolfo v. Appleton, 40 N. Y, 546.) These errors in the admission of evidence cannot be disregarded. ( Worrall v. Parmélee, 1 Comst., 519; Williams v. Fitch, 18 N. Y, 546; Brown v. Richardson, 20 id, 476; Erben v. Lorillard, 19 id, 299; Warner v. Warren, 46 id., 235.) Stephen Holden for the respondent. Plaintiff could maintain an action for entire damages. (Dresser v. Dresser, 35 Barb, 573; Shaffer v. Lee, 8 id., 412; Rayalton v. R. & W. Turnpike Co., 14 Vt., 311; Fisk v. Falley, 6 Hill, 54; Masterton v. Mayor of Brooklyn, 7 id., 61; Green v. West. C. R. Co., 1 Moak [Eng.], 546.) The Northampton tables were properly received in evidence. (Grier v. Mayor of New York, 1 Abb. [N. S.], 206; Wager v. Schuyler, 1 Wend, 553; Guthrie v. Pugsley, 12 John., 126; Jackson v. Edwards, 7 Paige, 386, 408 ; 68 Penn. St., 400; 59 Maine, 488; See Rule 85, Supreme Court.) The evidence of Bobinson to discredit Harris was properly received. (Patchin v. Astor Mut. Ins. Co., 13 N. Y, 268; Gandolfo v. Appleton, 40 id., 533; Chapman v. Brooks, 31 id., 75; Fleet v. Murtón, 1 Moak [Eng.], 32, 36, 37; Sloan v. N. Y. C. R. R. Co., 45 N. Y, 125.) [MAJORITY — Grover, J.] Grover, J. The contract of the testator to support the plaintiff during her' life and his violation thereof are found by the verdict. The judge held that upon these facts the plaintiff was entitled to recover, not only the expense of her support to the commencement of the action, but the entire amount of such expense during her life. To this the defendants excepted, insisting that if the plaintiff was entitled to recover at all, she could only recover for the time prior to the commencement of the action, or, at most, to the time of the trial. Upon this question the authorities are somewhat conflicting ; but an examination satisfies me that the rule adopted by the judge is sustained by those best considered. Fish v. Foley (6 Hill, 54) was an action upon a covenant of the defendant’s intestate with the plaintiff to furnish him with sufficient water from the intestate’s mill dam to carry his fulling mill and carding machine, unlimited in duration. It was held that a previous action in which damages were recovered up to the commencement of the action was a bar to a subsequent action for breaches after the commencement of the former action. Nelson, O. J., says in the opinion that the covenant stipulated for a continued supply of water to the plaintiff’s mills, and in this respect may be appropriately styled a continuing contract; yet, like any other entire contract, a total breach put an end to it and gave the plaintiff a right to sue for an equivalent in damages. He obtained that equivalent, or should have obtained it, in the former suit. This is in principle precisely analogous to the present case. Here the contract of the testator was to support the plaintiff during her life. That was a continuing contract during that period, but the contract was entire and a total breach put an end to it, and gave the plaintiff a right to recover an equivalent in damages, which equivalent was the present value of her contract. Shaffer v. Lee (8 Barbour, 412) was an action upon a bond conditioned to furnish the obligee and his wife with all necessary meat, etc., during both and each of their lives. It was held to be an entire .contract, and that a failure to provide according to the substance and spirit of the covenant amounted to a total breach, and that full and final damages might be recovered for the future as well as the past. It is obvious that the right to recover a full equivalent upon a breach is the same when the contract is by parol as when it it evidenced by an instrument under seal. Dresser v. Dresser (35 Barb., 573) was upon a like contract by parol, and it was held that upon a breach the entire damages might be recovered. The counsel for. the appellants insists that such cannot be the rule, for the reason, as he insists, that it is impossible to ascertain the damages, as the duration of life is uncertain, and a further uncertainty arising from the future physical condition of the person. Guthrie v. Pugsley, (12 Johns, 126) and Wager v. Schuyler (1 Wend., 553) show that the former reason has no force. In each of these cases the value of a life estate in real estate was determined in actions upon the breach of covenants of warranty, as to which the uncertainty as to the duration of life was the same as in the present case. It may be further remarked that in actions for personal injuries the constant practice is to allow a recovery for such prospective damages as the jury are satisfied the party will sustain, notwithstanding the uncertainty of the duration of his life and other contingencies which may possibly affect the amount. The counsel for the appellants cites cases where it has been held that, in actions for a continuing injury to real estate, damages can only be recovered to the commencement of the action, and that subsequent actions may be brought for damages sustained thereafter. This is the undoubted rule in this class of actions, but has no application to actions upon contracts which are entire. Cases are also cited applying the same rule in actions upon covenants to repair. Beach v. Crain (2 Comstock, 86) was of the latter class. Ferguson v. Ferguson (id., 360) was a case, as appears from the facts stated, of a partial and not total breach of the contract, in which it was correctly held that a recovery could only be had for the partial breaches that had occurred. An exception was taken by the counsel to the reception of the Northampton tables as evidence tending to show the probable duration of the life of the plaintiff. It may be remarked that the objection thereto was general, not based upon the want of preliminary proof showing their genuineness or want of identity with those long in use by insurance companies and courts for this purpose. These tables were used by the Supreme Court in Wager v. Schuyler (1 Wend., 553), for this very purpose, in an action of covenant, where the probable duration of life was determined by the court in this way, upon a verdict subject to the opinion of the court.- That they have been long so used by the Court of Chancery in this State and courts of equity in England is too well known to require any citation of cases. They have been adopted by a rule of the Supreme Court for this purpose '(Rule 85). It would be singular indeed if, under these facts, they were to be held inadmissible, when the same fact was to be determined by a jury. They were competent in connection with the proof given as to the health, constitution and habits of the plaintiff. Ho complaint is made of the charge in this respect. There was no error in refusing to charge, as requested, that if the jury found that the contract was to furnish the plaintiff a home in the family of the testator and support her, then the obligation of the contract terminated at the death of the testator. The evidence, if proving a contract at all, showed that it was to support the plaintiff during her life. Jacob Harris, a witness for the defendants, testified that he was present at conversations between the plaintiff and testator, in which declarations were made by the latter, and acquiesced in by the former, and admissions by the plaintiff, in substance, that no contract to support the plaintiff had ever been made by the testator with her. Upon cross-examination the plaintiff asked him if he had not said since the death of the testator that the old lady ought to have $1,000 out of the estate. He denied having so said. The plaintiff, for the purpose of discrediting the testimony of Harris, offered to prove that he had so said. To this the defendants objected on the grounds that it was immaterial to the issue and that the plaintiff was bound by the answer and could not contradict an opinion. The objection was overruled and the testimony received, and the defendants excepted. The question presented must be settled by the application of certain rules of evidence, which are well settled. A party has the right, for the purpose of discrediting the testimony of an adverse witness, to prove statements made by him contradicting the testimony given after the requisite examination of the witness in regard to such statement. Ho question as to this was made upon the trial. An opinion expressed by a witness upon the merits is inadmissible, though in conflict with his testimony. (Holmes v. Anderson, 18 Barb., 420 and cases cited in opinion.) A witness cannot be cross-examined upon a point not material to the issue, and his testimony in respect thereto shown to be untrue by other evidence. (Carpenter v. Ward, 30 N. Y., 243.) The question in this case is whether the statement made by Harris was the expression of an opinion, or, in effect, a declaration that the testator had entered into a contract, as claimed by the plaintiff. If the former, the proof was inadmissible; if the latter, otherwise, as it so contradicted the testimony given. It does not appear that any claim whatever was made by the plaintiff except upon this contract. That claim was made. It was in reference to this that Harris said she ought to have $1,000, and therefore equivalent to a declaration that the contract was made. At least the proof would warrant this conclusion, and is therefore proper for the consideration of the jury. The judgment appealed from must be affirmed, with costs. All concur. Judgment affirmed.