Gourley v. American Hardwood Lumber Co.

• Decision Date: 03 November 1914
• Docket Number: No. 13677.,13677.
• Citation: 170 S.W. 339,185 Mo. App. 360
• Parties: GOURLEY et al. v. AMERICAN HARDWOOD LUMBER CO.
• Court: Missouri Court of Appeals

170 S.W. 339

185 Mo. A. 360

GOURLEY et al. v. AMERICAN HARDWOOD LUMBER CO.

No. 13677.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

1. SALES (§ 416) — CONTRACT — ACTION FOR BREACH—EVIDENCE—SPECIAL DAMAGES.

In an action for breach of contract for the sale and delivery of lumber on a specified date, evidence of special damage to plaintiff from defendant's failure to furnish the lumber on that date, because plaintiff desired it to use for a special purpose, was inadmissible, in the absence of proof of notice to defendant of such purpose, and that damage would probably accrue from a failure to deliver the lumber within the time specified.

2. DAMAGES (§ 22)—BREACH OF CONTRACT— ELEMENTS.

Damages recoverable for breach of contract must be not only the natural result of the breach, viz., immediately connected therewith, but can only include such matters as both parties, in making the contract, might reasonably expect to flow from its breach in the particular case.

3. SALES (§ 418)—CONTRACT—BREACH—DAMAGES —REPURCHASE BY BUYER.

Where defendant failed to perform a contract to deliver certain lumber to plaintiff by a specified date, and plaintiff was required to purchase lumber for his needs, the market in which he was entitled to buy was not necessarily the nearest in point of miles, but that which was most available, price, delivery, etc., being considered; and hence an instruction that, in determining plaintiff's damages, the jury should consider only the market price, if any, of lumber at the place of delivery, and, if they found there was no market for such lumber there, then they should find the market value at the nearest market to the point of delivery where the lumber could be obtained, or the market where the same could be obtained on the most advantageous terms under all the circumstances, was erroneous.

4. TRIAL (§ 243)—INSTRUCTIONS — CONTRADICTORY INSTRUCTIONS.

The instruction was also contradictory, in charging in one part that the jury should find what the market value of the lumber was at the nearest market where the same could be obtained, and in another part that the jury should determine the market value in the market where the lumber could be obtained on the most advantageous terms.

5. SALES (§ 421) — CONTRACT — SELLER'S BREACH—SPECIAL DAMAGES—INSTRUCTIONS.

Where, in an action for a seller's breach of contract to deliver lumber on a specified date, there was no proof of notice to the seller that special damage would accrue from a failure to deliver on the date fixed, an instruction that, in determining the measure of damages, the jury should consider the market value of such lumber at the market where the lumber could have been obtained by plaintiff most advantageously under all of the circumstances, for delivery "then free on board cars" at the point of delivery, was erroneous, as charging that the price "for immediate delivery" should govern, and that the jury should consider the purpose for which the plaintiff intended to use the lumber.

6. SALES (§ 418) — CONTRACT — BREACH — TENDER OF DELIVERY—REFUSAL—EXPENSES.

Where a buyer rejected two cars of lumber as not complying with the contract, he was entitled to recover freight paid on the cars so rejected, together with a reasonable charge for unloading the cars, and for moving and cross-piling the lumber, in order to protect it, at defendant's request.

7. DAMAGES (§ 68)—CONTRACT—BREACH—INTEREST.

Where, in an action for a seller's breach of contract to deliver lumber, plaintiff recovered only actual damages sustained and growing out of the breach, as distinguished from profits lost, plaintiff was also entitled to recover interest from the date the suit was begun.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Arthur Gourley and others against the American Hardwood Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Muench, Walther & Muench, of St. Louis, for appellant. Fagin & Kane, Glen H. Mohler, and Arthur N. Sager, all of St. Louis, for respondents.

REYNOLDS, P. J.

On October 19th, 1908, plaintiffs, partners, addressed to defendant a letter in which they stated that they accepted the proposition of defendant on a "bill of No. 1 yellow pine, to be delivered at New Castle, Ind., as follows." Included in the bill were 185,000 feet 3×6 flooring or ceiling, apparently 10 and 20 feet long, "D. & M. & Beaded, 5¼ inch face by 2¼ full; about one-third 10 feet and two-thirds 20 feet. The 3×6's must be dry." The letter continued: "The car load of dimensions we want as soon as possible, and you can commence shipping on the 3×6's at your earliest convenience; but the delivery of all of the 3×6's and dimensions must be made by January 1, 1909." It is further set out that the price on the dimensions and 3×6's was $18 per thousand f. o. b. New Castle, Ind. "Terms regular. Shipments of above to be made to the C. C. Thompson Lumber Co., New Castle, Ind., care Maxwell-Briscoe Motor Co. switch." Plaintiffs transmitting this letter, signed by them to defendant, the latter wrote at the foot of it, "Accepted," this being signed by one of its managers.

For a failure to deliver the 3×6 lumber above mentioned on or before January 1st, 1909, plaintiff brought this action.

Setting out the agreement substantially as above and averring that plaintiffs had duly performed all the conditions of the agreement on their part and were, on January 1st, 1909, at New Castle, Ind., ready and willing to receive and pay for the lumber, it is averred that shortly prior to the first of January, defendant tendered two cars of lumber purporting to be a portion of the 3×6 lumber mentioned in the agreement but that the lumber was green, not beaded property, not of proper length and not such lumber as was called for in the agreement; that plaintiffs rejected the two cars of lumber and at the request of defendant unloaded the lumber from the cars, stacked it and held it subject to disposition by defendant.

It is further averred that defendant failed to deliver to plaintiffs any of the 3×6 lumber provided for in the agreement set out

"and that defendant was informed at the time the contract was entered into by the plaintiffs that said lumber must be delivered on or before the first day of January, 1909; that defendant was informed at the time the agreement was entered into by plaintiff's that said lumber was to be used in the erection of a building at New Castle, Ind., by the Maxwell-Briscoe Motor Company, and that defendant was informed by the plaintiffs that said plaintiffs were under contract to furnish said lumber to the Maxwell-Briscoe Motor Company, on or before the first day of January, 1909; that upon the failure of defendant to furnish said lumber as agreed, said Maxwell-Briscoe Motor Company compelled them to fulfill the terms of their contract, and that said plaintiffs were compelled to go into the open market and purchase said lumber in order to fulfill its contract with the Maxwell-Briscoe Motor Company; that said plaintiffs did purchase said lumber in the open market, at the market price in New Castle, Ind., on said first day of January, 1909; that the market price of said lumber on the first day of January, 1909, at New Castle, Ind., for 185,000 feet of said lumber, was the sum of $4,070, or the sum of twenty-four and 2848/185 dollars ($24.2848/185) per one thousand feet."

It is further averred that plaintiff paid the freight on the two cars of lumber so rejected, amounting to $204.30; that they had paid the further sum of $9.80 for unloading the cars and $13.06 for moving the lumber contained in the cars and cross-piling and protecting it at defendant's request. It is further averred that upon the failure of defendant to so deliver, and in an effort to purchase like lumber elsewhere, plaintiffs had paid out the sum of $85 in sending their agent to Meridian, Mississippi, the headquarters of defendant, and to Chicago, Illinois. Averring that the difference in the...