Clark v. Smalley Tie & Timber Co

• Decision Date: 18 November 1915
• Docket Number: No. 1563.,1563.
• Citation: Clark v. Smalley Tie & Timber Co, 180 S.W. 435 (Mo. App. 1915)
• Parties: CLARK et al. v. SMALLEY TIE & TIMBER CO.
• Court: Missouri Court of Appeals

180 S.W. 435

CLARK et al. v.SMALLEY TIE & TIMBER CO.

No. 1563.

Springfield Court of Appeals. Missouri.

November 18, 1915.

Rehearing Denied December 10, 1915.

Appeal from Circuit Court, Carter County; W. N. Evans, Judge.

Action by W. N. Clark and another against the Smalley Tie & Timber Company.From a judgment for plaintiffs, defendant appeals.Reversed and remanded.

L. B. Shuck, of Webb City, Garry Yount, of Van Buren, and W. J. Orr, of Springfield, for appellant.Stuart L. Clark, of Van Buren, and John H. Raney, of Greenville, for respondents.

STURGIS, J.

The defendant owned the timber on certain tracts of land along Current river in Carter county, Mo.The evidence is sufficient to show that it contracted with plaintiffs, who owned and operated a sawmill, to have plaintiffs make ties from its timber and deliver same at Current river, where same could be floated to market.The ties were to be made at plaintiffs' mill, some miles from the river, and then retained for some time before delivery, to allow the same to dry out or season, so as to float when placed in the water.The plaintiffs were to be paid, when the ties were made and inspected at the millyard, 18 cents per tie for red-oak and 22 cents for white-oak ties, and a further sum of 4 cents per tie when delivered at the river.

There is some contention, but we think wholly immaterial on the points at issue, whether the contract was at 18 and 22 cents per tie for making and an additional 4 cents for the delivery, or at 22 and 26 cents per tie for making and delivering with a provision for paying 18 and 22 cents per tie when made and the balance of 4 cents per tie when delivered.It is agreed that the plaintiffs have been paid, when due, the 18 and 22 cents per tie due them when the ties were made and inspected.The plaintiffs sue for damages for defendant's alleged breach of its contract in that defendant refused to permit plaintiffs to complete the contract by delivering the ties at Current river.The evidence is sufficient to sustain the finding that defendant took possession of the manufactured ties at the millyard and refused to allow plaintiffs to haul and deliver same at the river, though plaintiffs were ready and willing and offered so to do.This complication arose from the fact that the defendant, prior to making the contract with plaintiffs to manufacture and deliver these ties, had contracted with another party, the Van Buren Mercantile Company, hereinafter called the mercantile company, giving it the right to make the same timber into ties and deliver same at the river.This mercantile company was willing to, and did, ratify and acquiesce in that part of plaintiffs' contract with defendant by which plaintiffs manufactured the ties; in fact the mercantile company paid plaintiffs the amounts due them when the ties were made and inspected.The mercantile company, however, took the possession of the ties from plaintiffs and delivered them at the river.The evidence conflicts as to whether the plaintiffs, by a new contract with the mercantile company, abandoned to it their right to haul and deliver the ties at the river for the additional or unpaid balance of 4 cents per tie, but the jury found for plaintiffs on this issue.That finding is conclusive here, and the whole case is narrowed to the measure of plaintiffs' damages.At the trial, the plaintiffs contented themselves with proving the contract, the making of the ties by them, and that they had offered to deliver the ties, but were prevented from so doing by defendant through its prior contractee, the mercantile company, and that they had not been paid the 4 cents per tie conditioned on delivery.

Plaintiffs contend that the offer to perform is equivalent to performance, and that, having offered to deliver these ties at the river and being prevented from so doing by defendant, their damage is the sum they were entitled to receive on full performance.The trial court adopted this theory, and instructed the jury that if it found for plaintiffs, to assess the damages at 4 cents per tie for all ties manufactured by plaintiffs.The defendant contends that the measure of damages is only the net profit plaintiffs would have realized had they been permitted to complete their contract, and asked a proper instruction on this theory, which the court refused.We may say, in passing, that defendant also asked the court to instruct that plaintiffs could only recover nominal damages because there was no evidence as to what, if any, profit would have accrued to plaintiffs in delivering the ties at 4 cents each.The refusal of this last instruction is not error, for the reason that there is evidence that the mercantile company procured these same ties to be delivered at 3 cents per tie, thus giving a margin of at least 1 cent per tie profit; and, had the recovery been for this amount, and on this theory, we would affirm the judgment.

Whether the measure of damages for breach of contract is the full amount the injured party would have received for its performance, or the net profit which would so accrue, depends on the facts of tie particular case.Each party has cited a large number of cases stating the respective measures of damages contended for as general rules of law.It would not be difficult to find many more.In Walker v. Lundstrom, 132 Mo. App. 367, 370, 112 S. W. 1, 2, tbe measure of damages contended for by plaintiffs is stated thus:

"It is the settled law of this state that: `Where a party to a contract forbids its performance by the other, or interferes with its performance by the other to an extent which amounts to a refusal of performance, the other party thus interfered with may recover as if he had performed his contract.'"

This contract involved the breach of a contract for personal services.The measure of damages, as contended for by defendant, is stated in Hammond v. Beeson, 112 Mo. 190, 198, 20 S. W. 474, 476, in these words:

"The profit was the full measure of his possible gain, if he had been permitted to complete this contract, without unreasonable delay or interference.If he performed no part of it and incurred no expense, all the damages he could justly demand would be the loss of the profits he could have realized."

This case involved the breach of a contract for doing grading work on a railroad.

The question for us to determine is, Which measure of damages should be applied in this case?A reference to the fundamental principle underlying the general rules above stated will simplify this question.It is always held that either party to an executory contract, subject to the power of a court of equity to decree specific performance, has the right to refuse performance on the terms of compensating the other for damages.Peck & Co. v. Roofing Co., 96 Mo. App. 212, 70 S. W. 169;Bishop on Contracts, § 837.In Hammond v. Beeson, supra, the court, at page 197 of 112 Mo., at page 476 of 20 S. W., said:

"It is impossible to lay down any rule of damages, for breach of contract, that can be justly applied to all cases of any particular class.Each case must, in a great measure, be determined upon equitable principles, upon the particular facts by which it is attended, the controlling principle being that...