Dixon v. Breon

• Decision Date: 12 March 1903
• Docket Number: 119-1902
• Citation: 22 Pa.Super. 340
• Parties: Dixon v. Breon, Appellant
• Court: Pennsylvania Superior Court

22 Pa.Super. 340

Dixon v. Breon, Appellant

No. 119-1902

Superior Court of Pennsylvania

March 12, 1903

Argued October 29, 1902 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Clearfield Co.-1901, No 220, on verdict for plaintiff in case of Jerome R. Dixon v. George B. Breon.

Assumpsit for lumber sold to defendant.

At the trial it appeared that plaintiff claimed to recover not only for lumber actually delivered but also for lumber which had been cut, but was destroyed by fire before delivery, and also for work and labor done. The court refused to allow for the lumber not delivered.

Defendant made the following offer:

It is proposed to prove by defendant himself that he is the party of the first part named in a contract of February 19, 1900, and that at the time when he bought the lumber mentioned in said contract that he had made contracts for sale of lumber which he expected to supply thereupon and that he made other contracts for the sale of the same lumber that he purchased from the plaintiff and which he agreed to deliver the witness (the defendant) on the cars at Penfield and Winterburn; that said contracts were entered into by him on the strength of this purchase and that subsequently he was compelled to go into the market and purchase lumber to fill the contracts he had made in order to avoid liability for failure to perform his contracts. That he did so purchase lumber at the lowest prices that he could and thus filled the contracts he had made for the sale of the lumber covered by the contract of February 19, 1900.

That it is proposed to show that there was no place at Penfield where other lumber could be obtained to supply the lumber bought from the plaintiff, and to show where and from whom he bought the lumber and the price he was compelled to pay for the same classes and kinds of lumber he had bought under the contract sued on.

2. To show by the witness that no lumber was ever delivered on the cars at Penfield from the Mountain Run part of the contract.

3. This evidence is offered to show the loss and damage sustained by the defendant because of the nondelivery of the lumber purchased from the plaintiff and to set off said damage in this case against plaintiff's claim.

Objected to by plaintiff:

1. As incompetent and irrelevant.

2. Because it appears by the uncontradicted testimony that the Mountain Run and Winterburn logs in question were burned by a forest fire caused by a terrible strong wind spreading fire from some place unknown to the witnesses, and thereby it was rendered impossible to comply with the terms of the contract in that regard.

It is admitted by counsel for plaintiff and defendant, that the plaintiff and defendant were contracting with reference to a certain lot of logs located on certain particular lands which were to be cut from the tree, sawed and the lumber delivered on the cars at Penfield, the lands being situated on what is known as Mountain Run; that while the plaintiff was proceeding with the performance of his contract these 265,000 feet of logs were destroyed by a forest fire over which the plaintiff and defendant had no control and without fault on the part of either, and that no other lumber manufactured from the logs on Mountain Run Branch was delivered to the defendant and that all the logs covered by this contract from Mountain Run were destroyed.

The Court: It appearing that the subject-matter of this contract was a certain lot of logs on a particular tract of land and that they were subsequently destroyed by fire without fault on the part of the plaintiff and in a manner over which he had no control, it seems to us that it would be impossible for him to perform the contract within the contemplation of the parties at the time it was made, and that he is therefore relieved from the payment of damages by the reason of its nonperformance, and the objections are sustained, testimony excluded and exception noted to the defendant.

Verdict and judgment for plaintiff for $ 1,424.11. Defendant appealed.

Error assigned was ruling on evidence, quoting the bill of exception.

David L. Krebs, with him A. M. Liveright, for appellant. -- When the law creates a duty or charge and the party is dis abled to perform it without any default in him, and hath no remedy over, then the law will excuse him; but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract: Paradine v. Jayne, Aleyn, 26; Dermott v. Jones, 2 Wall. 1; Hand v. Baynes, 4 Wharton, 204; Hadley v. Clarke, 8 T.R. 259; Company of Proprietors of the Bricknock Canal Navigation v. Pritchard, 6 T.R. 750; Hoy v. Holt, 91 Pa. 88; Adams v. Nichols, 36 Mass. 275; School Trustees v. Bennett, 27 N.J.L. 513; Cutcliff v. McAnally, 88 Ala. 507 (7 So. 331); School District v. Dauchy, 25 Conn. 530; Tompkins v. Dudley, 25 N.Y. 272; Ward v. Hudson River Bldg. Co., 125 N.Y. 230 (26 N.E. 256); Jones v. Anderson, 82 Ala. 302 (2 So. 911); Kinports v. Breon, 193 Pa. 309; Moyer & Morgan v. Kirby, 2 Pearson, 64; Magaw v. Lambert, 3 Pa. 444; Fisher v. Milliken, 8 Pa. 112; Dyer v. Wightman, 66 Pa. 425; Bussman v. Ganster, 72 Pa. 285; Bradley v. McHale, 19 Pa.Super. 300.

The contractor (Dixon) was bound to provide against liability for nonperformance or inability to perform because of the destruction of his logs by fire: Switzer v. Pinconning Mfg. Co., 59 Mich. 488 (26 N.W. 762).

A wood's fire such as is covered by the admission of the parties in this case does not constitute an act of God.

A. H. Woodward and Thomas H. Murray, with them Allison O. Smith, for appellee. -- When it inherently appears from the contract to have been known to the parties to the contract and contemplated by them when it was made that its fulfillment would be dependent upon the continuance or existence, at the time for performance, of certain things or conditions essential to its execution, then in the event they cease before default to exist or continue and thereby performance becomes impossible without his fault, the contractor is, by force of the implied condition to which his contract is subject, relieved from liability for the consequences of his failure to perform: Stewart v. Stone, 127 N.Y. 500 (28 N.E. 595); Walker v. Tucker, 70 Ill. 527; Wells v. Calnan, 107 Mass. 514; Penna. R. R. Co. v. Fries, 87 Pa. 234; Howell v. Coupland, L. R., 1 Q.B. Div. 258; Anderson v. May, 50 Minn. 280 (52 N.W. 530).

Before Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

ORLADY, J.

This action of assumpsit was brought to recover a balance claimed to be due on four timber contracts, and for goods sold and delivered, work and labor done, services rendered, and for money had and received by the defendant in carrying out the lumbering operations referred to in the contracts. The assignments of error relate to the exclusion of evidence offered by the defendant through which he claimed the right to set off certain losses which had resulted from the plaintiff's failure to comply with the terms of his contract, dated February 19, 1901. Under this contract Dixon, a log jobber, covenanted and agreed to sell to Breon, a dealer in manufactured lumber, a certain quantity of hemlock and hard wood logs, located on certain specified tracts of land, which he was to cut, saw and manufacture into lumber, and to deliver the same on railroad cars in such sizes and quantities as Breon should direct. There were two jobs, one known as " Mountain Run," the other as " Winterburn." Operations under the contract were promptly begun and considerable work was done thereunder, so that practically all the logs had been delivered at a mill site to be sawed into lumber, before May 8, 1901, when they were all destroyed by a forest fire, which had started at a distant point, but by force of a " terribly strong wind spreading the fire from some place unknown," it was directed to the logs. It is admitted that Dixon and Breon were without fault in regard to the fire, and that the subject-matter of the contract was totally destroyed while the contract was in course of execution, so that, through an uncontrollable natural agency, its performance became impossible. It is likewise clear that the parties made their contract with regard to the particular timber mentioned therein. The timber, as specifically identified, was " estimated to contain about 400,000 to 600,000 feet from the Winterburn job and 300,000 to 500,000 from the Mountain Run job." It was not a sale of a certain quantity of lumber, but a sale in bulk of all the timber standing on particular lands, without regard to quality or quantity, and it could not be replaced by any other. The excluded testimony was offered to show that Breon had made contracts for selling the manufactured lumber which was to be delivered by Dixon, and that by reason of Dixon's failure to comply with his contract, Breon had been compelled to purchase other lumber in the market, and had sustained losses thereby which he claimed to set off against Dixon's claim in the present action.

Paradine v. Jane, Aleyn, 26, the leading case of a class upon which the appellant relies decides " that where the law creates a duty or charge and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him. . . . But where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract." In that case the defendant had taken a lease, covenanting to pay rent and the...