Dewar v. Taylor

• Citation: 43 Idaho 111,249 P. 773
• Parties: RODERICK DEWAR, Respondent, v. H. C. TAYLOR, Appellant
• Decision Date: 24 September 1926
• Court: United States State Supreme Court of Idaho

249 P. 773

43 Idaho 111

RODERICK DEWAR, Respondent, v. H. C. TAYLOR, Appellant

Supreme Court of Idaho

September 24, 1926

LOGS AND LOGGING-CONTRACT-REASONABLE PERFORMANCE-ACTION FOR BREACH-PROSPECTIVE PROFITS-PLEADING-DAMAGES-EXPERT TESTIMONY-BURDEN OF PROOF-EVIDENCE INSUFFICIENT TO SUPPORT VERDICT.

1. Contract to log certain timber is one where loss of prospective profits is natural and necessary result of breach and presumed to have been contemplated by parties, and so need not be specially pleaded.

2. Contract to do logging satisfactorily to owner requires only reasonable performance.

3. Under C. S., sec. 6712, as to pleading and burden of proof of performance of conditions of contract, contractor in logging contract, suing for breach, on his general allegation of due performance by him of all conditions being controverted, has burden of showing that, as required by contract, he pushed work as fast as possible and performed it in a reasonably satisfactory manner.

4. Logging is a business, the proper methods of doing which call for expert testimony.

5. Provision of logging contract that contractor shall push the work as fast as possible is to be given effect, as well as one providing for full performance by certain date.

6. Logging contractor, required to do work in reasonably satisfactory manner, may not operate chute with reckless disregard to defects, causing logs to jump out, without taking steps to correct defects, though chute was constructed by log owner.

7. Evidence held insufficient to support verdict for plaintiff logging contractor having burden of establishing reasonable performance.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Action for damages for breach of contract. Judgment for plaintiff. Reversed and remanded.

Judgment reversed and a new trial ordered. Costs to appellant.

H. J Hull, for Appellant.

The judgment of a trial court will be reversed when there is no substantial evidence to sustain it. (Keltner v. Bundy, 40 Idaho 402, 233 P. 516; Clarke v. Blackfoot Waterworks, Ltd., 39 Idaho 304, 228 P. 326; Spencer v. John, 33 Idaho 717, 197 P. 827; McConnon & Co. v. Hodge, 26 Idaho 376, 143 P. 522; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465.)

The rule and statute (C. S., sec. 7170) that where a substantial conflict in the evidence exists the verdict of the jury will not be disturbed is subject to the exception that the verdict will be reversed, notwithstanding the conflict, where it is plainly contrary to the decided weight of the evidence, so as to suggest that it was rendered through bias, prejudice or passion. (Hawkins v. Pocatello Water Co., Ltd., 3 Idaho 766, 35 P. 711; Goldstone v. Rustemeyer, 21 Idaho 703, 123 P. 635.)

A contract obligating one party to execute to the "satisfaction" of the other creates a valid and enforceable obligation, but where fancy, taste or sensibility are not involved, such a provision will be construed to mean that the execution shall be done in a manner satisfactory to a reasonable person. (Keeler v. Clifford, 165 Ill. 544, 46 N.E. 248; Erikson v. Ward, 266 Ill. 259, Ann. Cas. 1916B, 497, 107 N.E. 593; Isbell v. Anderson Carriage Co., 170 Mich. 304, 136 N.W. 457; Gerisch v. Herold, 82 N.J.L. 605, Ann. Cas. 1913D, 627, 83 A. 892; Waite v. C. E. Shoemaker & Co., 50 Mont. 264, 146 P. 736.)

If parties voluntarily assume the obligations and hazards of a "satisfaction" contract, their legal rights, subject to the rule of construction above stated, will be determined and adjudged according to its provisions. (Isbell v. Anderson Carriage Co., supra.)

In an action on a "satisfaction" contract, the burden is on the plaintiff to show that the work was performed in a satisfactory manner subject to the foregoing rule of construction. (Garisch v. Herold, supra.)

In cases involving a specialized art, or line of work with which the average juryman is not familiar and has no general knowledge or experience, and expert testimony is relied upon solely, then the jury are bound to find their verdict within the range of the expert testimony. (Hollingshead v. Watkins, 186 Iowa 582, 173 N.W. 4; Moehlenbrock v. Parke Davis & Co., 145 Minn. 100, 176 N.W. 169; Moratzky v. Wirth, 74 Minn. 146, 76 N.W. 1032.)

James A. Wayne, for Respondent.

Where the evidence is conflicting, but there is substantial evidence to support a verdict, the same will not be reversed on appeal. (C. S., sec. 7170; Larsen v. McKenzie, 41 Idaho 715, 241 P. 607; Kelly v. Arave, 41 Idaho 723, 243 P. 366; Nelson v. Johnson, 41 Idaho 697, 243 P. 647; Eastwood v. Schultz, 42 Idaho 118, 243 P. 653.)

Where the contract is for the doing of ordinary work in a manner satisfactory to the other party, such other party cannot capriciously, wilfully, or through whim, refuse to be satisfied, but before he can rescind the contract he must show not only that he was dissatisfied, but had reasonable grounds for such dissatisfaction. (Duplex Safety Boiler Co. v. Garden, 101 N.Y. 387, 54 Am. Rep. 709, 4 N.E. 749; Dall v. Noble, 116 N.Y. 230, 15 Am. St. 398, 22 N.E. 406, 5 L. R. A. 554; Parlin & Orendorff Co. v. Greeneville, 127 F. 55, 61 C. C. A. 591; Union League Club v. Blymyre Ice Mach. Co., 204 Ill. 117, 68 N.E. 409; Waite v. C. E. Shoemaker & Co., 50 Mont. 264, 146 P. 736.)

And the party required to perform the contract to the satisfaction of the other party is only required to perform such contract to the satisfaction of such party, so far as such party is acting reasonably in considering the methods of performance. (Erikson v. Ward, 266 Ill. 259, Ann. Cas. 1916B, 497, 107 N.E. 593; Hay v. Hassett, 174 Iowa 601, 156 N.W. 734; Tobin v. Kells, 207 Mass. 304, 93 N.E. 596; Boville v. Dalton, 86 Vt. 305, 85 A. 623; Gladding, McBean & Co. v. Montgomery, 20 Cal.App. 276, 128 P. 790; Jackson Lumber Supply Co. v. Deaton, 209 Ky. 239, 272 S.W. 717; Jessup & Moore Paper Co. v. Bryant Paper Co., 283 Pa. 434, 129 A. 559; Chandler, Gardner & Williams, Inc., v. Reynolds, 250 Mass. 309, 145 N.E. 476.)

Whether there has been such a performance of a contract as should satisfy a reasonable person is a question for the jury. (Yarno v. Hedlund Box & Lumber Co., 129 Wash. 457, 225 P. 659, 227 P. 518, and cases cited under this point.)

The evidence of experts, particularly on questions of values, if admissible at all, is not binding on the jury, but is advisory only; and the jury in arriving at their verdict may disregard such evidence. (McKelvey on Evidence, sec. 141; Jones on Evidence, sec. 392; Lawson on Expert and Opinion Evidence, p. 496; The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937; McNutt v. Pabst, 25 Cal.App. 177, 143 P. 77; Prichard v. Hooker & Nixdorf, 114 Mo.App. 605, 90 S.W. 415; Cleveland v. Wheeler, 8 Ala. App. 645, 62 So. 309; Sellers v. Knight, 185 Ala. 96, 64 So. 329; Bonds v. Brown, 133 Ga. 451, 66 S.E. 156.)

TAYLOR, J. Budge and Givens, JJ., concur.

OPINION

TAYLOR, J.

Plaintiff recovered judgment in the sum of $ 1,010, damages for breach of a contract by defendant, under which plaintiff was to log what afterward proved to be 505,000 feet of logs at $ 11 per thousand feet, the work having been stopped by defendant after part performance. The appeal is from the judgment and an order denying a motion for new trial.

Appellant specifies that the court erred in permitting plaintiff to prove damages for loss of profits under a general allegation of damages, and not specially pleaded. This was one of that class of contracts where the loss of prospective profits is the natural and necessary result of the breach, and must be presumed to have been contemplated by the parties in the making, and deemed to be contemplated in the breach thereof. In such case, the profits may be recovered without being specially pleaded. (Robinson v. Rispin, 33 Cal.App. 536, 165 P. 979; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242, 41 P. 1020.)

Appellant specifies further as error the insufficiency of the evidence to sustain the verdict, and predicates error on this same insufficiency in the denial of a directed verdict and the denial of a new trial, and that because of such insufficiency the verdict must have been given under the influence of passion and prejudice.

As particulars of such insufficiency, he specifies that the contract required respondent to perform it in a manner satisfactory to appellant, and that the evidence is undisputed that such was not done, and that appellant's dissatisfaction was based upon reasonable grounds; that respondent had not been damaged in any sum because the evidence conclusively showed that the contract could not be performed for $ 11 per thousand feet, and that, when subsequently completed, the actual cost was $ 12 per thousand feet.

The contract obligated plaintiff to "log said timber satisfactorily to (defendant)," to "push the work just as fast as possible," and "to have all logs delivered by January 7, 1924." The defendant was to "advance . . . . sums of money as the work shall progress," and the contract provided that "time shall be of the essence of this contract." Plaintiff stated generally, in accordance with C. S., sec. 6712, that he had duly performed all conditions on his part, and "continued to prosecute work under said contract and in accordance with its terms and conditions at all times down to the twenty-second day of August, 1923," the date when it was taken over by defendant, and that he had "complied with all of the terms and conditions of said contract," and that he was then and thereafter "has at all times been ready, willing and able to prosecute work under said contract and to comply with all of the terms and conditions thereof, and to fully and completely perform said contract."...