Franklin. v. Pence

• Decision Date: 11 December 1945
• Docket Number: (No. 9699)
• Parties: George P. Franklin et al. v. Silas H. Pence1945.
• Court: West Virginia Supreme Court

128 W.Va. 353

George P. Franklin et al.

v.Silas H. Pence

(No. 9699)

Supreme Court of Appeals of West Virginia.

Submitted September 25, 1945.

Decided December 11, 1945

1. Contracts

Profits of which the plaintiffs have been deprived by breach of contract by the defendant may be recovered, in an action for damages for such breach, if they have been established with reasonable certainty and are not speculative or conjectural in character or amount.

2. Sales

In an action for damages by the purchasers for breach of contract by the seller, in refusing to ship lumber as provided by the contract, the measure of damages is the difference between the contract price and the market value of the unshipped lumber at the time and the place of delivery.

3. Appeal and Error

In an action to recover damages for breach of contract, when the case has been fairly tried and no error of law appears, the verdict of a jury, based upon conflicting testimony and approved by the trial court, will not be disturbed unless

the verdict is against the plain preponderance of the evidence.

4. EVDIENCE

The admission of evidence claimed to be improper, offered by the plaintiffs, which is not prejudicial to the defendant, is not reversible error.

Error to Circuit Court of Summers County,

Assumpsit by George P. Franklin and others against Silas H. Pence for breach of contract for the sale of lumber. Judgment for plaintiffs, and defendant brings error.

Affirmed.

W. A. Broivn, for plaintiff in error, Thomas L. Read, for defendants in error.

Haymond, Judge:

This litigation is the outgrowth of a contract for the sale of lumber entered into between the plaintiffs, the purchasers, and the defendant, the seller, on April 3, 1943. At the trial, the jury returned a verdict for the plaintiffs for $800.00, upon which the court entered the judgment which the defendant seeks to reverse in this Court.

The plaintiffs, George P. Franklin and Nell L. Franklin, partners trading as George P. Franklin and Company, are lumber dealers with their office in the City of Huntington, West Virginia. At the time the contract in suit was entered into, the defendant, Silas H. Pence, had started to manufacture lumber from timber on about 950 acres of land in Summers County in this State. The transactions in connection with the contract were conducted with the defendant by George P. Franklin, in behalf of the plaintiffs.

On April 3, 1943, he called upon the defendant in Summers County, and, at that time, the defendant accepted and signed four written orders whereby he agreed to sell and ship to designated customers of the plaintiffs four separate lots or quantities of lumber. The first of these orders, numbered 476, was for 30, 000 feet of log run locust, to be shipped during May, 1943, to Pennsylvania Lumber and Post Company, a purchaser from the plaintiffs, at Hyndman, Pennsylvania, upon a sales commission of five per cent to the plaintiffs. The second order, numbered 477, called for 25, 000 feet of walnut flitches, to be shipped to Amos Thompson Corporation, a customer of the plaintiffs, at Edinburg, Indiana, within thirty to sixty days of the date of the contract. The third order, numbered 478, called for 90, 000 feet of mixed ash, basswood, poplar and cucumber, and hard and soft maple, in specified quantities, to be shipped to Daniel Buck, Inc., a customer of the plaintiffs, at Philadelphia, Pennsylvania, within thirty to one hundred, twenty days from the date of the contract. The fourth and last order, numbered 479 called for 15, 000 feet of hickory, to be shipped to Case Crane Company, a customer of the plaintiffs, at Columbus, Ohio, but no shipping period was specified. By orders 477 and 479, the plaintiffs were required to pay the defendant the purchase price in cash when the lumber covered by each of these orders was loaded on railroad cars at Pence Springs, West Virginia. Order 478 specified no time or manner of payment of the purchase price for the lumber covered by it.

The defendant shipped none of the lumber mentioned in orders 476, 477 and 479, and only two cars, aggregating 20, 651 feet, of the 90, 000 feet, leaving an undelivered balance of 69, 349 feet of the mixed lumber, required to be shipped under order 478. One of these cars was shipped October 8, 1943, and the other November 16, 1943, both of which dates were after the expiration of the period within which the shipments were required to be made by the terms of the signed order.

Though no method or time of payment was fixed by the terms of order 478, the plaintiffs gave, and the defend: ant accepted, sight drafts in payment of each of these cars. The draft for the first car was paid by the bank at Alderson, at which George P. Franklin had made arrangements to discount the drafts, and the defendant received his money promptly. Through some misunder standing in missending the draft to a bank in Philadelphia for collection from the drawee, the bank at Alderson was unable, until after a lapse of forty days, to obtain the funds which it had paid to the defendant; and thereafter it refused to discount any further drafts drawn by the plaintiffs. When the second car of lumber was shipped on November 16, 1943, the plaintiffs issued and delivered to the defendant, and he accepted, a sight draft for that load of lumber. He encountered some difficulty and delay in cashing the draft, and was unable to collect its proceeds for about twenty-two days. Thereafter, he refused to make any further shipments under the contract. He freely admits, and gives as his only excuse, that he feared or thought that he would not be paid by the plaintiffs for the undelivered amounts of lumber which he had agreed to ship on the contract. On this point, George P. Franklin testified that the defendant never gave any reason for not making the remaining shipments. After some communications had passed between the plaintiffs and the defendant, in which the plaintiffs called upon the defendant for further shipments and protested his refusal and delay, and the defendant having refused to perform, the plaintiffs instituted this action of assumpsit for damages for the alleged breach of the contract by the defendant.

Because the brief filed in behalf of the defendant contains no assignments of error, and the assignments in the petition for the writ of error are general in character, it is difficult to determine the exact points relied upon for reversal. The statements in the brief are considered as indicating that the main grounds of attack upon the judgment are: (1) The plaintiffs, in permitting a delay of twenty-two days in the payment of the draft given for the second car of lumber, breached the contract, and, for that reason, can not maintain this action; (2) the court erred in admitting evidence in behalf of the plaintiffs as to the amount of commission claimed by them of $105.00, because of the failure of the defendant to ship the lumber required by order 476; (3) the court erred in adopting an improper measure of damages in the case; and (4) the court erred in refusing to give four of the five instructions offered by the defendant. These questions will be considered in this order.

Order 478, under which the second carload of lumber was shipped, made no provision for the method or the time of payment by the plaintiffs. On this point the evidence is conflicting. George P. Franklin testified that he and the defendant agreed that the plaintiffs, in making payment, should have the option of paying cash or giving a sight draft for the price of the lumber as it was shipped. The defendant denies that such was the agreement and testified that payment was to be made in cash. On this question the jury found in favor of the plaintiffs, and that finding will not be disturbed by this Court. Stephens v. Bartlett, 118 W. Va. 421, 191 S. E. 550; Aliff v. Berryman, 111 W. Va. 103, 160 S. E. 864; Fuel Distributors v. Payne-Baber Coal Co., 107 W. Va. 465, 148 S. E. 854; Win go Mining Co. v. Flanagan Coal Sales Co., 93 W. Va. 76, 115 S. E. 839; Manufacturing Company v. Smith, 79 W. Va. 736, 91 S. E. 817. Furthermore, the evidence is to the effect that the defendant, having received the proceeds of the draft for the first carload, accepted the draft for the lumber shipped on November 16, 1943, without objection or protest, and, though he encountered a delay of twenty-two days in cashing the draft, he did receive and retain the full amount of the purchase price for all the lumber which he shipped. If the delay upon the part of the plaintiffs in making the payment for the second carload of lumber constituted a breach of the contract upon their part, they can not maintain this action for damages resulting from the breach of the contract upon the part of the defendant. When the covenants are dependent and mutual, as here, a party who violates the contract can not recover damages which result from its violation by the other party. 13 C, J. 567, 568, 569; 12 Am. Jur. 894; Jones v. Kessler, 98 W. Va. 1, 126 S. E. 344; Johnson v. Hoffman, 130 Va. 335, 107 S. E. 645. But this principle does not apply to the facts of this case. The delay in the payment of the draft, in the circumstances disclosed by the evidence, did not constitute a violation of the contract by the plaintiffs, or excuse its nonperformance by the defendant. The failure of the defendant to perform his promise to ship the lumber required to be shipped by him is clearly established. His failure to perform is not denied, but is, in fact, admitted by the defendant. The failure and the refusal of the defendant to perform amounted to a repudiation of the contract by him, and constituted a breach on his part, which entitled the plaintiffs to sue for the profits they would have realized if they had not been prevented from performing the acts required of them. The time of performance by the defendant having expired, the plaintiffs had an immediate right of action for damages for the profits of which they were...