Dobbins v. Edmonds
| Decision Date | 08 June 1885 |
| Citation | 18 Mo.App. 307 |
| Parties | THOMAS DOBBINS, Defendant in Error, v. O. J. EDMONDS ET AL, Plaintiffs in Error. |
| Court | Kansas Court of Appeals |
ERROR to Carroll Circuit Court, HON. JAS. M. DAVIS, J.
Affirmed.
Statement of case by the court.
This is an action for damages growing out of an alleged breach by defendants, of the following contrtact made between plaintiff and defendants.
" This agreement, made and entered into on this 18th day of April, 1879, by and between Thomas Dobbins and Barnett Edmonds & Co., witnesseth: The said Dobbins is to furnish at the mills of Barnett, Edmonds & Co., as soon as the water will permit, and the aforementioned logs can be rafted there, the following logs, to-wit, at the following prices:
| 100,000 feet burr oak at | $8.00 per thousand feet |
| 100,000 feet water oak, at | 8.00 per thousand feet |
| 50,000 feet elm, at | 5.00 per thousand feet |
| 35,000 feet hickory, at | 6.00 per thousand feet. |
| 50,000 feet sycamore, at | 5.00 per thousand feet. |
| 150,000 feet cottonwood, at | 5.00 per thousand feet. |
A portion of which timber has already been delivered, and is to be computed herein, and a portion of said logs have been paid as by parties agreed. The logs to be measured and scaled agreeably to Scribner's before being put into the river. The payment of said logs to be made as delivered as follows: Five hundred dollars to be paid May 30th, 1879, and five hundred dollars on the 30th of each month thereafter, provided there had been logs sufficient at the above prices delivered to amount to said sum, and if not, then to be paid only for the quantity delivered at said prices, the said logs to be cut and trimmed up in good order, and to be merchantable saw logs.
The petition after setting out the general terms of the contract, alleges that in pursuance of its provisions the plaintiff prepared and rafted the logs as agreed upon to the mills of defendants, and in all particulars performed the things required of him by the contract; but the defendants refused to comply therewith; that plaintiff at the time required by the contract tendered said logs to the defendants at their said mills, but the defendants refused to accept or pay for the same. By reason whereof the plaintiff was damaged in the sum of $2,000.00, for which he asks judgment.
The answer tendered the general issue.
The controversy seems to be over the logs rafted in July and August. The evidence on the part of the plaintiff tended to show that he prepared logs on the banks of Grand river according to the contract, and that thereupon he notified the defendants that they were ready, and for them to come and attend to the matter of the measurement and scaling. One of the defendants did then visit the ground, but refused to make any such measurement and scaling, alleging as a ground therefor that the logs were not merchantable. Thereupon the plaintiff proceeded to have the logs measured and scaled according to Scribner's rule, and floated them to the mills, and tendered them to the superintendent of defendants' mills, who declined to receive them, as he was instructed by the defendants not to receive or pay for them. The plaintiff thereupon tied up the logs at the mills. A few of them he afterward sold. He claims that he sold all he could find a market for, and for the best price he could obtain. A freshet came along and washed away the rest, which were thereby totally lost.
Much evidence was given at the trial, pro and con, as to the merchantable quality of the logs, as called for by the contract. Whether the logs were of the character required by the contract, and whether or not they were correctly measured and scaled according to Scribner's rule, were fairly enough submitted to the jury by the instructions given.
On the measure of damages the court declared the law on behalf of plaintiff to be that, if he complied with the terms of the contract on his part, and the defendants refused to participate in the measurement and in the scaling, and also refused to receive the logs after tendered at the mills, as provided by the contract, the plaintiff had the right to sell the logs as he did; and, after accounting for the proceeds of such sale, he was entitled to recover the contract price for the residue of the logs so delivered, provided they were of proper quality, etc. * * * On the other hand, defendants asked the court to lay down the rule of damages to be that the plaintiff, if the contract was broken on the part of the defendants, could only recover the difference between the contract price and the market value of the logs at the point on Grand river where they were scaled. The defendants also asked the court to declare the law to be that, if the defendants declined to join in making said measurement, etc., before the logs were floated, that put an end to the contract, and the plaintiff could only recover as damages the difference between the contract price and the market value of the logs. The court declined to instruct as requested by defendants. There were other instructions, which are not material to the determination of the real question involved, and there are others which will be noticed in the opinion of the court. The jury found the issues for the plaintiff, and assessed his damages at $1,891.75. The defendants have brought the case here on writ of error.
FORRIST & FRY, for plaintiffs in error.
I. The petition counts on the sale and delivery of the logs named in it, and prays for the contract price. To this there is a general denial. Such action can not be maintained, except by showing on the trial such sale of the property as would transfer the title to the logs from seller to buyer, the same having been delivered. 1 Chitty Plead. (9th Am. Ed.) top paging 355; Hilliard on Sales (2d Ed.) p. 391; Ober v. Executor of Carson, 62 Mo. 212.
II. The whole case, on the evidence, showed no such sale or delivery. The contract was executory only; was an agreement to purchase certain logs, in certain quantities, of certain quality, in the future, upon condition that the minds of the parties would meet touching the quality and quantity of the logs, on the banks of Grand river. This condition never happened, and without which happening, nothing was, or could be, bought or sold or delivered, and the contract eo instante was at an end. It had no existence, except as a foundation for a suit by the injured party against the party in fault for damages, upon a special and proper count for so wrongfully putting an end to said contract. Hilliard on Sales (3d Ed.) p. 135; Golden v. Ogden, 15 Pa. 523; Frith v. Beach, 15 Wendell 221; Scudder v. Worston, 66 Mass. 530; Benjamin on Sales (1st Ed.) sect. 352; Young v. Austin, 6 Pick. 232; Singham v. Eggleston, 27 Mich. 324; Chapman v. Sheppard, 39 Conn. 413; Chitty's Plead. (9th Am. Ed.) top p. 143, 343; Butler v. Butler, 77 N.Y. 47. Therefore, instruction of defendants should have been given.
III. The rule of damages in this case was not the contract price for the logs, but was the amount plaintiff had lost by breach of the contract; i. e., at the place where measurement was to be made, to make it and put an end to it, and show value there. The case showed that after delivery plaintiff converted a large portion of the logs to his own use, otherwise than by sale, for which he was accountable. Sutherland on Damages, 173; Ingram v. Rankin, 47 Wis. 406; 2 Sedg. on Damages (3d Ed.) side paging 275; Benjamin on Sales (4th Ed.) sect. 1117; Northorp v. Cook, 39 Mo. 203.
IV. As to what was scaling and measuring of the logs, and by whom to be done, this was a legal proposition, and should have been settled by the instruction, and not referred to jury, as was done by instruction, which referred a question of law to the jury. Hassett v. Rush, 64 Mo. 325; Hudson v. St. L. & c., R. R., 53 Mo. 525; Cocher v. Cocher, 2 Mo.App. 451. The lumber agreed to be purchased was all to be well trimmed and merchantable. This was not done by plaintiff, but the instruction was on the basis of contract being complied with by plaintiff. Crane v. Roberts, 5 Greenl. Rep. 419. To be told in such case by instruction that " a fair average lot of logs was what the contract called for," is not law.
V. The case was tried and submitted to the jury upon an erroneous theory, and upon issues made by the instructions, and not within the pleadings, and on which erroneous issues the jury found. The error should have been corrected on the motion in arrest of judgment. Capital Bk. v. Armstrong, 62 Mo. 65; Iron Bk. v. Same, Ib. 73, and authorities cited.
KINLEY & WALLACE, for defendant in error.
I. The petition is for damages for violation of the contract, and asks the proper relief. Green & Myers' Mo. Pract., sect. 677; Sedg. on Damages (4th Ed.) side p. 381.
II. After the offer to deliver the logs, plaintiff had the right either to abandon them to defendants at their mill, or sell them for the best price he could get. The fourth instruction for plaintiff is correct. Ingram v. Mathein, 3 Mo. 151; Sand v. Lovett, 5 Johns 395; Hunter v. Watson, 84 N.Y. 549; Shawhan v. Van Nest, 25 Ohio 490; Benjamin on Sales (2d Am. Ed.) sect. 788; Cullen v. Bimm, 37 Ohio 236.
III. The refusal of defendants to scale the logs did not prevent plaintiff from doing it and holding defendants to the contract, upon compliance by plaintiff with the terms of it. Ohio Falls Co. v. Menzies, 90 Ind. 83; Attix v. Pelan, 5 Iowa 336.
IV. Unless vendor chose to regard the articles sold as his own after vendee refused to receive them, the value does not enter into the case. He is not so required to consider them, but may consider them as vendee's, subject...
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