Colvin v. McCormick Cotton Oil Co.

• Decision Date: 18 April 1903
• Citation: Colvin v. McCormick Cotton Oil Co., 66 S.C. 61, 44 S.E. 380 (S.C. 1903)
• Parties: COLVIN v. McCORMICK COTTON OIL CO.
• Court: South Carolina Supreme Court

44 S.E. 380

66 S.C. 61

COLVIN v. McCORMICK COTTON OIL CO.

Supreme Court of South Carolina

April 18, 1903

Appeal from Common Pleas Circuit Court of Abbeville County Townsend, Judge.

Action by Jas. A. Colvin against the McCormick Cotton Oil Company.From judgment for defendant, plaintiff appeals.Reversed.

Henry C. Hammond and Parker & Greene, for appellant.Johnstone & Welch and Frank B. Gary, for appellee.

JONES J.

This action was brought to recover an alleged balance of $1,740.79, with interest, and 10 per cent. thereof additional as attorney's fees, as the amount due upon a written contract for the sale and purchase of certain cotton oil mill machinery.By way of defense, and also by way of counterclaim, defendant sets up damages for alleged breach of contract by plaintiff in failing to deliver the machinery and putting the mill in running order within the time specified to the amount of $1,909.12.The jury rendered a verdict in favor of defendant for $726, and from the judgment thereon comes this appeal by the plaintiff.The exceptions are very numerous, 32 in number, with many subdivisions, but we will consider them under the following subject heads:

1.Demurrer to the answer.Exceptions 1 to 5, inclusive, assign error in overruling plaintiff's demurrer to the answer made, upon the grounds that it did not state facts sufficient to constitute a defense or counterclaim, the specifications being that the damages alleged in the answer were not the proximate or the direct and the natural result of the alleged breach of contract, but were too remote, not within the contemplation of the parties to the contract, consequential and the result of defendant's own acts.The demurrer was to the answer as a whole, and not to any particular item of damages alleged therein.If, therefore, there is any item of damages alleged therein which is proper, then the demurrer must be overruled.The defense and counterclaim alleged in the answer were both based upon the same specifications of damages.We quote, therefore, the sixth paragraph of the answer, relating to the counterclaim: "(6) That the defendant alleges that early in May, 1899, it contracted with the plaintiff for the machinery mentioned in the complaint herein; that at that time it was understood and agreed that said machinery, constituting the mill, should be delivered on or before the 15th of September of said year, and that the plaintiff should have it in running order within two or three weeks from said date; these dates were fixed with the understanding and agreement that the defendant could prepare to begin manufacturing at the beginning of the cotton oil season of 1899-1900, and so that the defendant could make its arrangements to that end; that the plaintiff under this condition of affairs failed to perform, and on the other hand violated, its contract with the defendant; that the machinery was not shipped until many weeks after the aforementioned date when it was contracted that it should be shipped, and was not put in running order until January of 1900; that, acting upon the understanding and agreement aforesaid with the plaintiff, the defendant made all preparations and arrangements to begin manufacturing at the beginning of the season of 1899-1900; that the defendant purchased cotton seed, looking to that end; that the defendant afterwards was compelled, in order to prevent these seed from heating and spoiling, to have them moved or aired two or three times a week from October 1, 1899, to December 1, 1899, at a cost of $96; that on account of the crowded condition of its warehouse--produced by the aforementioned delay of the plaintiff--it incurred an extra expense in the unloading of 25 cars of seed, amounting to $50; that it had temporarily to place 300 tons of cotton seed in its hullhouse, and afterwards to remove them to the mill, incurring wastage and extra expense in connection therewith to the amount of $75; that owing to the aforementioned delay it was compelled to transfer 50 tons of hulls from the mealroom to the hullhouse, at a cost of $10.That for four months the defendant was compelled, on account of said delay, to rent an extra warehouse, at an expense of $40; that owing to said delay the defendant was compelled to transfer 100 tons to and from the aforementioned rented warehouse, incurring a loss thereby in waste and expense amounting to $100; that, pending the erection of the mill as hereinbefore stated, the defendant was compelled to incur an extra expense or prolonged interest period on borrowed money, amounting to $324.62; that on account of said delay the defendant paid out money on insuring seed, amounting to $27.50; that owing to the delay aforesaid 250 tons of cotton seed became heated and thereby damaged to the extent, together with extra press cloths rendered necessary, of $600; that owing to the said delay the defendant incurred an expense of $100 in preserving 700 tons of seed that became heated, and were only preserved for manufacturing purposes by being moved and thereby cooled; that owing to the said delay some of the seed became partially heated, and the meal therefrom depreciated in value to the extent of $256, and the oil therefrom deteriorated in value to the extent of $90; that owing to the aforementioned delay 35 tons of the meal manufactured by this defendant from injured or heated seed was so inferior as to be unsuited to the general market, and had to be disposed of at a loss of $140.These losses and expenses, amounting to $1,909.20, incurred and suffered by the defendant on account of the delay, failure, and breach of the understanding and agreement by the plaintiff as hereinbefore set forth, this defendant alleges constitute a counterclaim as against any sum that may be due to the plaintiff, and the defendant demands judgment therefor against the plaintiff."

In the case of Sitton v. MacDonald,25 S.C. 70, 60 Am. Rep. 484, the court said: "The rule as to the proper measure of damages (in an action for damages for the breach of a contract) is not always free from difficulty.It is not the same under all circumstances, but necessarily varies to meet the varying cases as they arise.It is different in actions ex contractu from those in tort.In the former it is more restricted, the fundamental principle being that the damage must be 'the primary and immediate result of the breach of contract.'Wood's Mayne, Dam.§ 12;Tappan & Noble v. Harwood, 2 Speers, 536;D'Orval v. Hunt, Dud.180.In the latter well-considered case it was held that 'for the breach of an executory contract, without fraud or imposition, the jury can only give such damages as fairly and naturally result from it, and which can be measured by a pecuniary standard; remote and consequential damages cannot be allowed.'This is undoubtedly the rule, but it is not always easy to fix the exact limit between what is primary and secondary or what is immediate or consequential and remote.If the breach is merely in the tardy delivery of the property intended for sale, it is obvious enough that ordinarily the damage would be the difference in the price realized from that which might have been obtained at the proper time.But if the breach is in the nondelivery of an article not intended for sale, but for use in some particular business, other considerations intervene, and the matter is not so clear.In this class of cases, the Courts have endeavored to lay down certain rules to assist in fixing the damages upon proper principles.In Hadley v. Baxendale, 9 Exch. 341, which seems to have been considered a leading case both in England and America, the following rules are indicated: 'First, that damages which may fairly and reasonably be considered as naturally arising from a breach of contract according to the usual course of things are always recoverable; second, that damages which would not arise in the usual course of things from a breach of contract, but which do arise from circumstances peculiar to the special case, are not recoverable, unless the special circumstances are known to the person who has broken the contract.'See Wood's Mayne, Dam. § 14, and notes."

Applying these principles to the case as presented by the demurrer to the answer, the allegations in the answer being thereby admitted to be true for the purpose of the demurrer, we cannot say as matter of law that not a single item of damages alleged naturally arose in the usual course of things from the alleged breach of contract, nor can we say that no item of damages alleged arose from the special or peculiar circumstances of the case which was not known to the plaintiff.Take, for example, the injury alleged to have been sustained from the heating of the cotton seed bought and stored for the use of the mill by reason of the delay in putting in the machinery.It was within the reasonable contemplation of the parties that defendant would lay in a stock of cotton seed and store them for use in the operation of the mill machinery which plaintiff contracted to provide for the season of 1899-1900.If by reason of the delay in placing the machinery the cotton seed heated and damaged in the storeroom to any extent not attributable to the negligence of defendant, or if defendant, in a proper effort to limit or prevent the injury to be apprehended from heating, was put to extra expense in handling and cooling the seed, arising from plaintiff's delay, these clearly come within the rule stated.The demurrer was therefore properly overruled.

2.Admissibility of testimony.Exceptions 6 to 15 inclusive, allege error in rulings as to the admissibility of certain testimony.First.The witness Bushnell, over objection, was asked, "What representations did you make to get these gentlemen to buy that machinery?"To...