Davis v. Grand Rapids School Furniture Co.

• Decision Date: 25 March 1896
• Citation: 24 S.E. 630,41 W.Va. 717
• Parties: DAVIS v. GRAND RAPIDS SCHOOL FURNITURE CO.
• Court: West Virginia Supreme Court

24 S.E. 630

41 W.Va. 717

DAVIS v. GRAND RAPIDS SCHOOL FURNITURE CO.

Supreme Court of Appeals of West Virginia.

March 25, 1896

Submitted February 4, 1896

Syllabus by the Court.

1. Where a party to a contract notifies the other that he does not intend to abide by or perform it, the other may bring an immediate suit for such damages as he may thereby have sustained, without waiting for the time of performance to expire.

2. When a vendor fails to comply with his contract, the general rule for the measure of damages is the difference between the contract price and the market price of the article at the time of the breach.

3. But when the circumstances of the case are such that the vendee cannot go into the market and supply himself with the article, the rule does not apply, for the reason of it has ceased.

Error to circuit court, Cabell county.

Assumpsit by B. T. Davis against the Grand Rapids School-Furniture Company. There was judgment for plaintiff, and defendant brings error. Affirmed.

Marcum Marcum & Shepherd, for plaintiff in error.

Simms & Enslow, for defendant in error.

HOLT P.

On writ of error, to a judgment of the circuit court of Cabell county, on the 1st day of April, 1895, in favor of plaintiff Davis, against defendant, the Grand Rapids School Furniture Company, for $666, for damages in failing to deliver certain opera chairs bought of the company. The facts are as follows The plaintiff, B. T. Davis, was the owner of an opera house in the city of Huntington, which he had leased to a party and had agreed to have it furnished with opera chairs put in place by the 1st day of September, 1893. The Grand Rapids Company, among other things, sold such chairs; and they had an agent, W. H. Kratz, in Huntington, whose business it was to sell them and put them in place. By letter dated 27th February, 1893, the company wrote to plaintiff, Davis, that they were informed by Mr. Kratz that plaintiff was ready to place his order for opera chairs, asking him to come on and examine their chairs, closing as follows: "If your time is limited, and you cannot make the trip, any order you may place with Mr. Kratz will be satisfactory to us, and be faithfully fulfilled, you may depend. He is so closely identified with the interests of our company that he can offer you as liberal terms as we could, and this we have authorized him to do." And by letter of the same date they wrote to their agent, Mr. Kratz, saying, among other things: "We must have this order. Rather than permit A. to capture the same, we want you to cut prices wide open, should he, for any reason, conclude to purchase at home, and you must face strong competition. Use your own judgment about prices, but make the sale. We give you crate blanche to capture this job, and don't want you to lose it, no matter what the circumstances may be." Therefore he concluded a purchase of the chairs, 488 of style No. 2, 120 of style 2 and 4 of style 101, at the price of $1,791.20, in part upon credit. The company, when notified of the sale, insisted on cash payment. Mr. Kratz notified plaintiff, and the contract, with his consent, was made a cash sale; that is, Davis agreed to pay all charges for freight, drayage, etc., on the chairs, to receive the same, and, within 10 days after the seating should be set in place, to accept and settle therefor, and pay to the company $1,791.20. It was about 30 days after the purchase before plaintiff, Davis, heard anything from the defendant company, when their agent, Mr. Kratz, gave him verbal notice that his company had refused to fill the contract, and it was returned. He shows that he was ready, willing, and able to carry out the contract on his part. This chair was patented, and could not be bought in the open market, and had been selected for its strength as well as the style, as the opera house was put to many uses, such as holding political meetings, conventions, etc. Davis again turned out to buy, having but little time to go on; and, after examining several kinds of chairs, succeeded in about 10 days in buying the same number of chairs for the same aggregate price. It was a chair not so strong, and therefore not so well suited for his purpose, but was the best he could do under the circumstances: and two years' experience showed that, for his purpose, they were not worth more than...