BOYD v. Gunnison

• Decision Date: 09 November 1878
• Citation: 14 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: Boyd & Co, v. Gunnison & Co.

14 W.Va. 1

Boyd & Co,

v.Gunnison & Co.

Supreme Court of Appeals of West Virginia.

Decided November 9, 1878.

1. Where a contract for the sale of personal property names several places, at which said property may be delivered, at. the buyer's option, the buyer must within a reasonable time make his selection of the place of deliver}'.

2. If nothing is said in the contract as to the time of delivery of personal property, the delivery must be made in a reasonable time.

3. A. contract is made on the 30th of March, 180S, for the sale of two thousand barrels of oil; the contract gives the buyer the right to select one of three places mentioned in the contract for the delivery of the oil; and on the 9th of April, 1808, the buyer selects the city of New York, one of the places mentioned in the contract, as the place of delivery. The selection under the circumstances of this case was made in a reasonable time.

4. The oil had to be transported from "White Oak, West Virginia, to New York; and from the commissioner's report it would reasonably take from the 9th of April, 1.868, to the 26th of the same month to deliver the oil in New York city. There being no time specified in the contract for the delivery of the oil; and the law requiring it to be delivered in a reasonable time; HelcI:

That under the circumstances of this case, the 26th of April, 1868, was the time, when the oil should have been delivered under the contract.

5. The general rule is, that the proper measure of damages for the breach of executory contracts for the sale and delivery of personal property is the difference between the contract price and the market value of the article,;it the time when and place where, it should haye been delivered.

6. Where no time is fixed in the contract for the delivery of the oil, the buyer cannot, without the consent of the seller, extend the delivery of any part of the oil beyond a reasonable time

7. "Where questions of fact are submitted to a commissioner in chancery, his findings upon such facts should be sustained, unless the court is satisfied from the evidence before the commissioner, that such findings are erroneous, though such report is not entitled to the same weight as the verdict of a jury.

8. A case, in which there was a report of commissioner finding the difference between the contract price of oil sold, and the market value of the oil when it should have been delivered, at six cents per gallon; and the court below, reformed the report by reducing such difference to three cents per gallon, and while this court decided, that the basis, on which the commissioner proceeded, was wrong, and the court below may have also proceeded on a wrong basis in ascertaining such difference, yet the presumption being in favor of the correctness of the decree, this court affirmed it, because it could not, after looking into the whole evidence upon the correct basis, say, that the decree was not justified by the evidence.

9. In ascertaining what is the market value of personal property on the day of delivery at a certain place, it is proper to hear evidence of the market value thereof within a reasonable time both before and after such day.

Appeal from and supersedeas to a judgment of the circuit court of Wood county, rendered on the 3d day of August, 1875, in a cause in chancery, in said court then pending, wherein William H. Boyd & Co. were plaintiffs, and Austin Gunnison & Co. were defendants, granted on the petition of said defendants.

Hon. James M. Jackson, judge of 1 lie fifth judicial circuit, rendered the judgment appealed from.

Johnson, Judge, furnishes the following statement of the case:

At July rules. 1868, the plaintiffs filed their bill, in the circuit court of Wood county, against the defendants, setting up a contract for the sale of oil, and a breach thereof. The jurisdiction of the court was obtained under the statute, permitting a suit in equity upon an attachment against non-resident defendants having effects in the county, where the suit is brought. The defendants to the bill were non-residents. The bill alleges, that the plaintiffs were dealers in oils, &e., as were also the defendants; that they applied to the agent, E. Conner, of defendants residing in New York, to purchase some oil, and entered into a written contract with the said defendants through such agent as follows:

"New York, March 30, 1868.

"This is to certify, That I have sold to William HBoyd & Co., 132 Front street, New York, for account of A Gunnison & Co. of Cincinnati, Ohio, two thousand (2, 000.) barrels of West Virginia lubricating oil, like sample, at ten aud one-half (10 1/2) cents per gallon, delivered in tank along side ot the Laurel Fork and Sand Hill R. R., at White Oak, in West Virginia; or in tank at Parkersburg, at thirteen (13) cents per gallon; or at the B. & O. R. R. Co. wharjf in Baltimore, at twenty-two (22) cents per gallon in barrels, in good merchantable order; or in suitable oil-yard, known as New York, at twenty-four (24) cents per gallon, in like good order. Terms cash on delivery; the delivery at either of the above points at the buyer's option. "E. Conner,

"For A. Gunnison & Co., Gin., Ohio.

"Accepted March 30, 1868.

"William H. Boyd & Co.,

"By William M. Smith, Attorney."

That it was the purpose of plaintiffs in entering into said contract, to perform their part of it in good faith, that the price, agreed to be paid for said oil at the several points named, was regulated by the then state of the oil market, and by the difference in the cost of transportation, according to the distance from the oil works in West Virginia; that plaintiffs notified said defendants, that they had chosen a suitable oil-yard known as New York, in New York, as the place of delivery for said two thousand barrels of oil; and that the plaintiffs were there at the said place ready and willing to pay for the said oil at the rate of twenty-four (24) cents per gallon, when delivered in good order; that although they notified the said A. Gunnison & Co., that they had chosen New York, as the place of delivery for said oil, and that they were ready to pay cash for it, yet the said defendants, within a reasonable time after the date of said contract, and the notice of said option in favor of said oil-yard in New York, failed and refused to deliver the said two thousand barrels of oil. They charge, that E. Conner was the agent of said defendants, and authorized to make said contract, and that, by reason of the neglect and failure of defendants to deliver said oil, plaintiffs had suffered damage to the amount of $8,000.00 in loss of profits, &c. That at the time said oil should have been delivered, the oil market was good; and by the failure to deliver said oil at the place of delivery, and at the time of delivery, they sustained the damage aforesaid; and they refused to comply with their contract. Then follows the necessary allegation as the foundation of an attachment. The bill concludes with a prayer, that $8,000.00 damages be decreed to be paid to them by the said defendants; and for general relief.

The defendants filed their answer, in which they admit, that E. Conner was their agent, and that he was authorized to make the contract set up in the bill; but say, that they were surprised on receipt of a copy of that contract, on the 1st of April, to find, that no time was fixed for the delivery of said oil, and that they immediately by telegraph to their agent required him to notify plaintiffs, to fix a time and place of delivery; that they are informed and believe, that this said agent made an effort to find the complainants, that he might require them to fix a time and place of complying with said agreement; that said agent not being able to find complainants, and a reasonable time having elapsed since the making of said contract, and no demand having been made upon respondents, or their agent, by complainants to comply with the same, respondents notified said agent to notify complainants, that they would not deliver said oil, and should regard said contract as void.

Respondents say, that by reason of the iailure of complainants to fix a time and place for delivery of said oil, they cannot call upon respondents to answer in damages, for non-compliance with the terms of said contract. They deny, that a demand was made upon them within a reasonable time; and they charge, that complainants did not in good faith enter into said contract; but intended, as they are informed and believe, if there was an advance in oil, to require respondents to comply with said contract; but if there should be a decline, to not require the oil to be delivered. Respondents deny, that complainants have sustained any damage; and pray to be hence dismissed, &c.

To the answer the plaintiffs replied generally. The deposition of A. Gunnison, one of the firm of A. Gunnison & Co., is taken, in which he swears to substantially what he sets up in the answer. In it he says, he did make the demand, and that respondents did demand, thai plaintiffs fix the time and place for the delivery of the oil. The telegram referredto is as follows:

"Cincinnati, April 1, 1868.

"To E. Conner, 197 'Pearl St, New York:

"Purchasers must select place of delivery; we niusi be conferred with as to time. A. Gunnison &Co."

And the other exhibit filed with his deposition is:

"Cincinnati, April 10, 1868,

"Can't wait longer for decision Boyd & Co., decline order."

Among the letters of E. Conner, sent to his principals, is one dated April G, 1868, in which he says: "Your telegram of the 3d inst., and letter of the 1st were both received. As soon as the party, to whom I sold, returns, I will get a definite time and place for delivery, which I think I can make to suit your views; they may want, a part of it delivered at a time say thirty days and the balance some time; afterward. I will get the time definite and submit it to you; I think I can make it suit all round."

In a letter dated New York, ...