Avgikos v. Lowry
| Citation | 179 P. 988,54 Utah 217 |
| Decision Date | 28 March 1919 |
| Docket Number | 3294 |
| Court | Utah Supreme Court |
| Parties | AVGIKOS v. LOWRY |
Appeal from the District Court of Carbon County, Seventh District Hon. George Christensen, Judge.
Action by Tom Avgikos against W. A. Lowry.
Judgment for plaintiff. Defendant appeals.
REVERSED AND REMANDED.
P. G Ellis of Salt Lake City, for appellant.
L. A McGee and Ferdinand Ericksen for respondent.
Plaintiff, in the first cause of action, seeks to recover judgment against defendant for $ 554.60, alleged to be due as a balance for 3,182 pounds of wool delivered to defendant under a written contract, hereinafter referred to, made between the parties in December, 1916. In the second cause of action Judgment is sought for $ 471.40 as a balance due one Jim Avgeris upon a similar contract made with defendant under which 2,238 pounds of wool had been delivered. The right of action in the second cause of action had been assigned to the plaintiff.
Defendant admitted the contracts, admitted the delivery of the wool as stated in the complaint, admitted that he had paid only the amounts mentioned in the complaint, namely, $ 400 on the first cause of action and $ 200 on the second, and denied any indebtedness. As a counterclaim against the plaintiff, defendant set up the contract, alleged failure of the plaintiff to deliver the amount of wool specified, and asked for affirmative judgment as damages against plaintiff, and prayed damages by way of recoupment against the second cause of action for failure of the plaintiff's assignor to deliver the amount of wool mentioned in his contract.
In reply, plaintiff admitted the execution of the contract, and, by way of justification for his failure to deliver the number of pounds mentioned in the contract, alleged that the quantity mentioned was approximate only; that at the time of delivery defendant made no issue or objection to the quantity, but promised to pay plaintiff for the amount delivered; and denied that any damages had been sustained by defendant by reason of nondelivery. Similar allegations were made in the reply to the answer for recoupment against the second cause of action.
Trial was had before the court and a jury. A verdict was returned in favor of the plaintiff for the full amount demanded in the complaint.
The two contracts in question, which are admitted by all parties, are the same, except as to the names and the amounts. The contract made between plaintiff and defendant, so far as material here, is as follows:
The contract made by the defendant with Avgeris is the same, except that the number of sheep was 500 ewes and the amount of wool estimated at 4,000 pounds. Acknowledgment is made of $ 200 as payment on the purchase price.
From the judgment entered, defendant appeals, and assigns errors which may be considered under three heads: (1) That the court erred in overruling defendant's demurrer to the complaint; (2) That the court erred in submitting to the jury the question as to whether or not the delivery of the amount of wool that was delivered was a substantial compliance with the contract; (3) that the court erred in certain instructions given.
Plaintiff alleged the existence of the contract and attached the same as an exhibit to the complaint; alleged delivery of the number of pounds of wool mentioned in the first cause of action, to wit, 3,182, and in the second cause of action, 2,238. No reason is alleged, or attempted to be alleged, why the full amount stipulated in the contracts was not delivered, and for that reason defendant contends that the complaint fails to state a cause of action. In other words, that as plaintiff has based his right to recover upon a written agreement, and it affirmatively appears from the complaint that the number of pounds to be delivered was about 8,000, and it also affirmatively appears that the plaintiff did not deliver that amount of wool, and no excuse is given why he did not, for such reason the complaint does not state a cause of action. Similar objection is made to the second cause of action, and it is likewise contended that the demurrer should have been sustained to both causes of action. We are not called upon to determine that particular question, as we think the court was justified in overruling the demurrer upon other grounds.
However, the rule seems to be founded upon principle and supported by recent and respectable authority that where a vendor contracts to deliver a specified amount of goods or material, and the full amount is not delivered, the vendee is at liberty to refuse to accept the part tendered, or, having accepted a part, he is at liberty to return that and refuse to accept less than the entire amount specified, but after having received and retained a part of the amount the vendee will not be permitted to refuse to pay for the goods so delivered and retained by reason of the failure of the vendor to deliver the full amount contracted. And that is especially true, and must be so, in cases like the one under consideration where the value and usefulness of the goods actually delivered and received are in no way deteriorated or affected by the failure to deliver the full amount specified in the contract. Clark v. Moore et al., 3 Mich. 55; Willamette Steam Mills L. & Mfg. Co. v. Union L. & Supply Co., 94 Cal. 156, 29 P. 773. In addition, however, both in the first and second causes of action, after setting out the contract, and after stating the delivery of the wool mentioned in the complaint, it is alleged "that the defendant accepted the said wool and agreed to pay for the same according to agreement." That allegation would entitle the plaintiff to recover for goods sold and delivered, and relieves the complaint of the objection urged that the demurrer was erroneously overruled.
The testimony show that the plaintiff delivered wool from 440 sheep only, whereas it is provided in the contract that wool should be delivered from 750 ewes and 250 lambs. It also appears from the testimony that plaintiff's assignor delivered wool from 325 or 330 sheep, and not from 500 ewes, as provided in his contract. Testimony was also offered on the part of plaintiff to prove that number of sheep were all that either the plaintiff or his assignor had at the time of shearing in the spring of 1917, and that they were unable to procure the necessary wool to fulfil the contracts with defendant. It is also is alleged in the answer that the wool delivered was accepted by the defendant without question, and without issue as to any failure upon the part of the plaintiff or his assignor to deliver the full amount specified.
The court, at the request of the plaintiff, instructed the jury as follows:
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