Graves v. Glass

• Decision Date: 12 October 1892
• Citation: 86 Iowa 261,53 N.W. 231
• Parties: GRAVES v. GLASS.
• Court: Iowa Supreme Court

86 Iowa 261

53 N.W. 231

GRAVES

v.GLASS.

Supreme Court of Iowa.

Oct. 12, 1892.

Appeal from district court, Linn county; J. H. PRESTON, Judge.

Action for damages. Verdict and judgment for plaintiff. Defendant appeals.

Plaintiff, a subcontractor under defendant, in 1887, entered into an agreement with the latter to grade a certain section of the Cedar Rapids & Chicago Railroad, then being built between Cedar Rapids and Manchester. Plaintiff claims that by the terms of the contract defendant agreed to furnish him with all the tools necessary to perform the work; that he failed to do so; and hence he has been damaged $296 for time of himself, hands, and teams lost while waiting for defendant to furnish the tools. He also asks $35 damages for use of plows and scrapers that he was obliged to furnish in place of those which defendant agreed to furnish. He also claims $20.65 for damages by being compelled to do the work at a later season of the year, and thereby losing a portion of each day, though the wages paid to his employes were the same. Defendant says he was not to furnish any tools to plaintiff except “wheelers,” which he claims he did furnish as he had agreed. Avers that he has paid plaintiff in full, denies that plaintiff has been damaged, and denies all allegations in plaintiff's petition not expressly admitted. In the fourth division of his answer defendant pleads a settlement had with plaintiff in December, 1887, of all matters in dispute arising out of said contract, including the claim now made by plaintiff.C. J. Deacon, for appellant.

M. P. Smith, for appellee.

KINNE, J.

1. It is insisted that the district court erred in giving to the jury, on its own motion, instruction 5, which is as follows: “If you find from the evidence that plaintiff and defendant entered into the contract set out in plaintiff's petition, as hereinbefore stated to you in instruction 1; that defendant failed, neglected, or refused to furnish the necessary and ordinary tools to carry on said work; that plaintiff exercised reasonable diligence to protect himself against loss or damage by reason of said failure of defendant,--then plaintiff will be entitled to recover for such loss of time by himself, his men and teams, and reasonable value for the use of his own tools, if any loss can be shown by the evidence, as was occasioned by the said failure of defendant to furnish said tools, and for such sum you will find for the plaintiff, together with 6 per cent. interest thereon from November 19, 1887. If you fail to so find, then you will find for the defendant.”

The cases relied on by defendant as furnishing the rule as to the measure of damages are: Prosser v. Jones, 41 Iowa, 676; Manufacturing Co. v. Day, 50 Iowa, 252; and Riech v. Bolch, 68 Iowa, 526, 27 N. W. Rep. 507. A careful examination of these cases shows that the rule therein announced is based on facts widely different from those in the case at bar. In them it is held the damages sought to be recovered were too remote, not the natural and proximate consequence of the breach of the contract, and that they were not such damages as could, under the circumstances, have been in the contemplation of the parties at the time they entered into the contract. In the case at bar it is claimed, and the jury must have found, that the defendant agreed to furnish to the plaintiff the necessary tools...