Gourley v. American Hardwood Lumber Company
| Decision Date | 03 November 1914 |
| Parties | ARTHUR GOURLEY et al., Respondents, v. AMERICAN HARDWOOD LUMBER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted October 6, 1914.
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Muench Walther & Muench for appellant.
(1) The measure of damages for breach of a contract of sale is the difference between the contract price and the market price of the commodity at the time and place where it should be delivered; or, if there is no market of the commodity at the place of delivery, the market price at the next available market, with allowance for expense of transportation and hauling, is the measure of its value at the place of delivery. National W. & S. Co. v. Toomey, 144 Mo.App. 516; Howard v. Haas, 139 Mo.App. 591; Cobb v. Whitsett, 51 Mo.App. 146; Van Stone v Hopkins, 49 Mo. App 386; Northrup v. Coak, 39 Mo. 208; Griffith v. K. C. Co., 46 Mo.App. 539; Huggins v. Lime & Cement Co., 121 Ga. 311; 35 Cyc. p. 636. (2) Special damages are not recoverable, unless the circumstances from which the special damages would arise were known to the seller at the time the contract was entered into. 35 Cyc. p. 634; Mechem on Sales, sec. 1759; Sutherland on Damages (3 Ed.), sec. 52, p. 164; Gill v. Com. Co., 84 Mo.App. 456; Central Trust Co. v. Clarke, 92 F. 293. (3) Notice to defendant of the terms of the plaintiffs' contract with the Maxwell-Briscoe Motor Co., given after the contract sued upon was entered into, is not sufficient to entitle plaintiffs to recover special damages. Hooks Smelting Co. v. Planters C. Co., 72 Ark. 275; Hadley v. Baxendale, 9 Exch. 41; Union Foundry Wks. v. Columbia &c. Co., 112 Ill.App. 183. (4) The price upon exceptional sales, or as affected by attempts to purchase lots of the same size as contracted for, is not to be taken as the basis for the estimation of damages. 35 Cyc. 636-7; Faulkner v. Closter, 79 Ia. 15; Thompson & Co. v. Howes, 14 La. Ann. 45. (5) Interest is not allowable in an action to recover unliquidated damages for a breach of contract, the amount of the demand being uncertain. Wiggins v. Railroad, 128 Mo. 224; Dozier v. Jerman, 30 Mo. 216; Typewriter Co. v. Realty Co., 165 Mo.App. 131; Nelson v. Hirsch, 102 Mo.App. 498.
Fagin & Kane, Glen H. Mohler and Arthur N. Sager for respondents.
(1) The measure of damages to which plaintiffs are entitled, as the natural and logical consequence of defendant's breach of contract, is the difference between the contract price and the market price of similar lumber, on January 1, 1909, for immediate delivery, at the most advantageous or at the nearest available market to New Castle, Indiana, together with the expense of transporting it to the place of delivery, there being no market for such lumber at the said place of delivery. Vickery v. McCormack, 117 Ind. 594, 20 N.E. 495; Capen v. Glass Company, 105 Ill. 185; Cobb v. Whitsett, 51 Mo.App. 146; Benjamin on Sales, page 883; Haskell v. Hunter, 23 Mich. 305; Nottingham Ice Co. v. Preas, 99 Va. 285; Righter v. Clark, 78 Conn. 9. (2) The true test as to the allowance of interest on a claim is whether the exact pecuniary amount of the claim is ascertainable by simple computation, such as the market price of a commodity, and whether the time from which interest must run, can be definitely ascertained. 1 Sedgwick on Damages (8 Ed.), sections 299, 300, 315; 1 Sutherland on Damages, page 610; Thomas v. Wells, 140 Mass. 517; Sullivan v. McMillan, 37 Fla. 134; Brown v. Doyle, 69 Minn. 543; Padley v. Catterlin, 64 Mo.App. 629; McCormack v. Lynch, 69 Mo.App. 524; Webster v. Railroad, 116 Mo. 114; McBeth v. Craddock, 28 Mo.App. 380; Goodman v. Railroad, 71 Mo.App. 460; Atkinsson v. Steamboat Castle Garden, 20 Mo. 127.
On October 19, 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 3x6 flooring or ceiling, apparently ten and twenty feet long, The letter continued: "The carload of dimensions we want as soon as possible, and you can commence shipping on the 3x6s at your earliest convenience; but the delivery of all of the 3x6s and dimensions must be made by January 1, 1909." It is further set out that the price on the dimensions and 3x6s was $ 18 per thousand f. o. b. New Castle, Ind. 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 3x6 lumber above mentioned on or before January 1, 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 1, 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 3x6 lumber mentioned in the agreement, but that the lumber was green, not beaded properly, 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 3x6 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 plaintiffs 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 $ 4070, or the sum of twenty-four and 28 48-185 dollars ($ 24.28 48-185) 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. Avering that the difference in the contract price of the 3x6 lumber and its market price at New Castle, Ind., on the first day of January, 1909, amounted to $ 1162.28, and setting out the expenses above referred to, judgment was demanded for $ 1474.44, with interest from the date of the institution of the suit and for costs.
The answer was a general denial.
There was a verdict for plaintiffs in the sum of $ 1388.44 for the debt and $ 202.70 for interest, a total of $ 1591.14.
Filing a motion for new trial and excepting to the action of the court in overruling it, defendant has duly perfected its appeal to this court.
An analysis of the verdict shows that the jury did not allow the $ 85 said to have been paid out to the agent of the plaintiffs in sending that agent to Meridian and Chicago, so that is out of the case. It further appears, on an analysis of the verdict, that the jury allowed as damages the difference between the contract price and the price which plaintiffs paid for the lumber, that is to say, about $ 6.28 a thousand, and that it allowed $ 204.30 for freight on the two cars of rejected lumber and $ 22.86 for unloading and moving that lumber. It also appears that the jury awarded interest at six per cent on the sum of the items so allowed.
There is practically no controversy in the case as to the correctness of the allowance for the expenses connected with the rejection of the two cars of lumber, that is to say, the freight and handling of these two cars.
The errors assigned are to the allowance of the difference between the contract price of the 185,000 feet and the price paid by plaintiffs for the like quality of lumber which it purchased, that is to say, $ 6.38, as stated. The correctness of the allowance of interest is also challenged.
At the trial of the cause, which was before the court and a jury under the promise of counsel for plaintiffs that he would...
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