¶1 A good cause of action was shown on the part of the plaintiffs against the defendants, for neglecting to proceed with reasonable diligence iff forwarding the oats after the notice which they received on the 27th of May, and' the only question which the case presents relates to the amount of damages for which the defendants are responsible.
¶2 . The rule applicable to such cases has been briefly and accurately stated by Mr. Powell, as follows i “ Damages for breaches of contract are only thoge which, are incidental to, and directly caused by, the breach, and may reasonably be presumed to have entered into the contemplation of the parties; and not speculative profits, or accidental or consequential losses.” (Powell on Ev. ch. 21, § 54, p. 216; Hadley v. Baxendale, 9 Wels. H. & G. 341; Griffin v. Colver, 16 N. Y. Rep. 494, 5; Code Nap. §§ 1150, 1151; Mayne on Dam. 15.) I think the instructions given to the jury in this case, which were excepted to, can not be reconciled to this rule. The damages to the oats, from heating, were not “incidental to, or directly caused by,” the delay in moving them. The delay, if 'proper care had been bestowed upon the oats, would not have resulted in their injury. The direct cause of injury, therefore, was the want of care. The necessity for extra care arqse from the delay, and the expenses attending such necessary care, if it had been bestowed, would have been the direct result of the defendants’ breach of contract. For such expenses they would have been answerable, but were not answerable for the damages which resulted from the failure to bestow that care. The law, for wise reasons, imposes upon a party subjected to injury from a breach of contract the *77 active duty of making reasonable exertions to render the injury as light as possible. Public interest and sound morality accord with the law in demanding this; and if the injured party, through negligence or willfulness, allows the damages to be unnecessarily enhanced, the increased loss justly falls upon him. (Miller v. Mariners’ Church, 7 Greenleaf, 51; Shannon v. Comstock, 21 Wend. 461; Heckscher v. McCrea, 24 id. 309; Clark v. Marsiglia, 1 Denio, 317; Spencer v. Halstead, Id. 606; Loker v. Damon, 17 Pick. 284.)
¶3 If the injury to the oats had been the necessary consequence of the delay, and the contract had been entered into vby the defendants in view of that consequence, in case of their failure in performance, (Hadley v. Baxendale, 9 Exch. supra,) they would have been responsible for such injury, because it would have been the direct result of their breach of contract. The case then would have been parallel to that of the failure of a railroad company to take milk or vegetables to market, in accordance with previous contract, and other like cases suggested by Mr. Justice Mullen in his dissenting opinion in this case. In such cases, however, the injured parties could recover nothing for damages, which, by reasonable diligence on their part, could have been prevented. (Miller v. Mariners’ Church, supra.)
¶4 The burden of proving that the damages which have been sustained in such cases could have been prevented, unquestionably rests upon the party guilty of the breach of contract. (Costigan v. The M. & H. R. R. Co., 2 Denio, 609.) As I understand the case, such proof was made by the defendants here; but whether the fact was conclusively proved or not, there was sufficient evidence to call for the submission of that question to the jury, which was taken from their consideration by the positive instruction of the judge, that the defendants “were liable to respond for any damage the oats sustained after the defendants should have entered upon the performance of the contract.”
¶5*78 It is not material to inquire whether the duty of taking care of the oats rested upon the plaintiffs, who were the owners, or upon McDonald & Hall, who were the custodians of them. It is sufficient for the present case that it rested upon one or the other, and not upon the defendants. Ho responsibility in this respect attached to the defendants, until they took possession of the property.
¶6 The judgment of the special term was properly reversed, and final judgment must be rendered against the plaintiffs, in pursuance of their stipulation.
¶7 . Denio, Oh. J. and Davies, Weight, Emott and Marvin, Justices, concurring,
¶8 Ordered accordingly.