Campfield v. Sauer

• Decision Date: 06 June 1911
• Docket Number: 2,095.
• Citation: 189 F. 576
• Parties: CAMPFIELD v. SAUER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

189 F. 576

CAMPFIELD v. SAUER et al.

No. 2,095.

United States Court of Appeals, Sixth Circuit.

June 6, 1911

Henry B. Graves, for plaintiff in error.

Robert E. Bunker, for defendants in error

Before SEVERENS and KNAPPEN, Circuit Judges, and McCALL, District judge.

KNAPPEN Circuit Judge.

The plaintiff in error (hereinafter called the defendant) had a contract with the board of education of Ann Arbor, Mich., for the construction of a high school and library building, to be completed by August 15, 1906. The defendants in error (hereinafter called the plaintiffs) were unsuccessful bidders for this contract, and after its award to defendant entered into contract with him, through an offer in writing (accepted by the defendant) in the following language:

'Ann Arbor, Mich., July 8, 1905.

'Mr E. M. Campfield, General Contractor, High School and Library, Ann Arbor, Michigan-- Dear Sir: We will furnish you all the timber as below, sizes and prices hereafter named and specified free on board cars Ann Arbor, Mich Ann Arbor Ry. delivery, for the High School and Library Building. Quality to be as per specifications for said building, all as per sizes and specifications, which you are to furnish us. And will do all in our power to get a quick delivery, especially the first floor tier of floor joist. (The following prices are net.)'

A schedule of prices and sizes followed. Plaintiff sued for the unpaid price of lumber furnished under this contract. The defendant set up a counterclaim for breach of contract, in failing to deliver lumber as demanded. On the first trial plaintiffs recovered, defendant's counterclaim being rejected, under a construction adopted by the Circuit Court, that the contract was unilateral. This court reversed the judgment of the Circuit Court and awarded a new trial, construing the contract as binding the plaintiffs to furnish and the defendant to buy thereunder all of the timber required for the building. Campfield v. Sauer, 164 F. 833, 91 C.C.A. 304. Upon a new trial plaintiffs have again recovered. The important facts, so far as they need now be set out, are these:

During July, 1905, defendant sent plaintiffs four orders under the contract, amounting to $8,768.43. Defendant paid thereon $7,211.33 (possible 10 cents more), leaving an unpaid balance, as claimed by plaintiffs, of $1,557.10. The lumber under these orders was delivered at dates ranging from August 22d to December 29, 1905. No further order was made until October 21, 1905. By this time the price of lumber had appreciably advanced. Plaintiffs expressed a willingness to fill this order provided defendant would stand the difference caused by the increased prices, refusing otherwise to fill it or further orders, under the claim (no competent evidence of which is called to our attention) that plaintiffs were induced to enter into the contract by defendant's agreement to immediately furnish the schedule of sizes, and that defendant when requested to furnish such schedules, agreed to take his own chances on an increase in price. Defendant declined to stand the increase, and on October 30th notified plaintiffs that unless advised that the latter would furnish all the lumber contracted for, defendant would purchase in open market at the best prices obtainable, and would charge the extra cost thereof to plaintiffs' account 'with any damage or cost in securing the aforesaid lumber. ' The orders subsequent to those of July were unfilled. Upon the trial defendant admitted the receipt of lumber amounting to $8,422.46, and claimed payments thereon of $7,211.43, leaving an admittedly unpaid balance of $1,211.03. He claimed to have paid by way of increased price of lumber purchased on account of plaintiffs' default, and on account of defects and shortages in the lumber received under the July orders, $973.31. Recovery was asked for this amount, as well as special damages for the alleged delay of 60 days in the completion of the building through plaintiffs' delay in filling the July orders and the failure and refusal to fill the later orders. These special damages claimed consisted, first, of an item of $2,500 which defendant claimed to have paid to the board of education under a provision of his contract with the board, by which defendant agreed to pay the actual damages sustained by delay in the completion and delivery of the building; and, second, large amounts claimed to have been lost by way of wages and other expenses while the work of construction was suspended by reason of plaintiffs' delay in furnishing lumber. The jury were instructed (as we construe the charge) that defendant was entitled to credit against the purchase price of the lumber delivered to the extent of shortages in the invoices thereof, as well as on account of defective lumber not actually used by defendant (in case of such use the defendant to be liable for its reasonable value only); and that the defendant was entitled to recover on account of the lumber not delivered only the difference between the contract price and the increased market price, unless unable to purchase at the market price. A later instruction that the value of lumber not furnished could be assessed at no more than the market price at the time plaintiffs refused to proceed with the contract was doubtless inadvertent. Defendant's claims for damages resulting from delay in filling the July orders and from refusal to fill the later orders were not submitted. Verdict was rendered for plaintiffs for the full amount of their claim with interest, and for defendant, by way of set-off, for $744.05, leaving a net recovery in plaintiffs' favor of $1,117.97.

1. The important question presented is whether the trial court rightly excluded from the consideration of the jury the special damages claimed by defendant to have been suffered through plaintiffs' refusal, in October, 1905, to make further deliveries. Plaintiffs contend that the court's action was justified under the doctrine announced by this court in Lawrence v. Porter, 63 F. 62, 11 C.C.A. 27, 26 L.R.A. 167, and the record seems to indicate that the court's action was based upon the authority of that case. It is clear to our minds that the case presented here is not brought within the doctrine of Lawrence v. Porter.

In that case there was a contract for the sale of lumber on credit. The seller refused to deliver on credit, offering, however, to deliver for cash at a reduced price, the reduction more than equalling the interest for the term of credit. The buyer did not allege inability to pay cash, but asserted that he was unable to obtain the lumber from others than the seller at the place of delivery or other available market. It was held that the buyer could not recover damages on the ground that he had bought for resale at another place at an advance over the contract price and cost of transportation, for the reason that plaintiff had received from defendant an unconditional offer to furnish the lumber at a reduced price. No question was made of the ability and readiness of the defendant to so furnish. In that case Judge (now Mr. Justice) Lurton, speaking for this court, said:

'The offer after the breach by defendants to sell the lumber necessary to complete the contract was not coupled with any condition operating as an abandonment of the contract, nor as a waiver of any right of action for damages for the breach.'

In the case before us plaintiffs' offer to furnish the lumber was not unconditional. On the contrary, the statement was:

'We are perfectly willing to furnish the lumber, provided only you will stand the difference caused by the increase in price since our original agreement and as per your verbal agreement above mentioned.'

It is clear that had defendant accepted this offer he would have abandoned all claim for damages for the difference in price so paid. He was under no obligation to make such waiver for the sake of saving plaintiffs from liability for the damages which might result from delay through purchasing elsewhere. Coulter v. B. F. Thompson Lumber Co. (Sixth Circuit) 142 F. 706, 74 C.C.A. 38; Hirsch v....