Gravette v. Golden Saw Mill Trust

• Decision Date: 16 April 1934
• Docket Number: 31185
• Citation: 154 So. 274,170 Miss. 15
• Court: Mississippi Supreme Court
• Parties: GRAVETTE v. GOLDEN SAW MILL TRUST et al

154 So. 274

170 Miss. 15

GRAVETTE v. GOLDEN SAW MILL TRUST et al

No. 31185

Supreme Court of Mississippi

April 16, 1934

Division B

1 TRIAL.

In passing on defendant's motion to strike out plaintiff's evidence and grant directed verdict for defendant, testimony for plaintiff must be taken as true and proper inferences therefrom be drawn favorable to plaintiff.

2. LOGS AND LOGGING.

In suit for breach of contract for hauling defendant's timber whether defendant breached contract and intended to prevent plaintiff from performing held for jury under evidence.

HON THOS. H. JOHNSTON, Judge.

APPEAL from circuit court of Tishomingo county HON. THOS. H. JOHNSTON, Judge.

Suit by W. E. Gravette against the Golden Saw Mill Trust and others. Judgment for defendants, and plaintiff appeals. Reversed, and remanded for a new trial.

Reversed and remanded.

J. A. Cunningham and Floyd W. Cunningham, both of Booneville, for appellant.

A breach of contract is a nonperformance of any contractual duty of immediate performance. A breach may be total or partial, and may take place by failure to perform acts promised by promisor, or hindrance, or by repudiation.

2 Restatement of Law by American Law Institute, sec. 312, Contracts.

A positive statement of promisor or other person having a right under the contract, indicating that the promisor will not or cannot substantially perform his contract, constitutes a breach.

2 Restatement of Law by American Law Institute, sec. 318; Cook v. England, 92 Am. Dec. 626; People v. New York Produce Exchange, 29 N.Y.S. 307.

The case at bar constituted an independent contract and the plaintiff had full authority to determine the mode and manner of his work, and was only responsible to the master to produce the results contemplated by the contract, and which he himself could do, or see to the doing of it, or could have it done by others. The breach of such a contract gives the injured party the right to declare it breached, and to file a suit, at once, for the damages to him proximately flowing from the breach of the contract.

18 R. C. L., sec. 29; Harness et al. v. Kentucky Flour Spar Co., Ann. Cases 1914A 803; Mt. Pleasant Stable Co. v. Steinberg et al., 15 A. L. R. 749 and 756, par. III, subsection b, Logging and Timber Contracts; Columbus Mining Co. v. Ross et al., 50 A. L. R. 1394; McGinnis v. Studebaker Corp., Ann. Cases 1917B 1190; Central Trust Company of Illinois v. Chicago Auditorium Association, 60 L.Ed. 811; Roehm v. Horst, 44 L.Ed. 960.

It is no longer open to question in this court that, as a rule, where a party bound by an executory contract repudiates his obligations or disables himself from performing them before the time for performance, the promisee has the option to treat the contract as ended, so far as further performance is concerned, and maintain an action at once for the damages occasioned by such anticipatory breach.

Central Trust Company of Illinois, etc., v. Chicago Auditorium Association, 60 L.Ed. 811; Roehm v. Horst, 44 L.Ed. 953; 13 C. J. 657, Contracts, secs. 733 and 804; 17 C. J. 788, sec. 113; Friedlander v. Pugh, etc., 43 Miss. 111; Brach v. Stewart, 104 So. 162, 41 A. L. R. 1172; Eastman-Gardner Hardwood Co. v. Hall, 102 So. 270; Stoddard v. Carter, 82 So. 70; 13 C. J., pages 651 and 658, secs. 725 and 736.

The defendants contend that there was an accord and satisfaction upon which issue was struck in the pleadings. The record made by the plaintiff does not only affirmatively show that there was no accord and satisfaction, but specifically and affirmatively denies this proposition.

1 C. J. 560, Accord and Satisfaction, sec. 82; Cooper & Hack v. Yazoo-Miss. Valley R. R. Co., 35 So. 162; 13 C. J. 658, sec. 735.

The contention of the defendants that proof of damage was too indefinite and unintelligible to be submitted to the jury, is another vain proposition in the very face of the best authorities.

Eastman-Gardner Hardwood Co. v. Hall, 102 So. 270; Beach v. Johnson, 59 So. 800; Stoddard v. Carter, 82 So. 70; Bluethenthal v. McDougal, 141 So. 291; Brach v. Stewart, 104 So. 162, 41 A. L. R. 1172; Columbus Mining Co. v. Ross et al., 50 A. L. R. 1394; Mt. Pleasant Stable Co. v. Steinberg et al., 15 A. L. R. 749, 751, para. III, subsection b, Logging and Timber Contracts; Vicksburg R. Co. v. Ragsdale, 46 Miss. 458.

W. C. Sweat, of Corinth, for appellees.

It is uniformly held, so far as I know, that a mere statement or declaration of a party that he will refuse to perform a contract in some particular is not sufficient to constitute a breach thereof. He must go further and fail in some material respect to carry out the contract.

Clark & Co. v. Miller, 154 Miss. 233, 122 So. 475; 13 C. J. 654, sec. 727; Milton et al. v. Stone Lbr. Co., 36 F.2d 583; Dingler v. Oler, 29 L.Ed. 984; McGuire v. Meils Lbr. Co., 97 Minn. 293, 107 N.W. 130; Benjamin on Sales 568; In re Smoot's case, 21 L.Ed. 107; Wright v. Petree, S. & M. Ch. 282; Halls v. Thompson, 1. S. & M. 443; Ayers v. Mitchell, 3 S. & M. 683.

A full and complete settlement was consummated between the parties, and, therefore, an accord and satisfaction.

Cooper v. R. R. Co., 82 Miss. 634, 35 So. 162; Phillips v. St. Paul Fire & Marine Ins. Co., 156 Miss. 41, 125 So. 705; Rucker v. King Const. Co., 159 Miss. 387, 131 So. 872; Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189; May Bros. v. Doggett, 155 Miss. 804, 124 So. 476; Greener & Sons v. Cain & Sons, 137 Miss. 33, 101 So. 859; Domick v. Brookhaven Box Co., 153 Miss. 72, 120 So. 193; Enock v. Cotton Co., 139 Miss. 234, 104 So. 92; Blue Ribbon Creamery v. Monk et al., 147 So. 329.

The suit was prematurely brought.

Upton v. Adcock, 145 Miss. 372, 110 So. 474; Birdsong v. Ellis, 62 Miss. 418; Lee v. Hampton, 79 Miss. 321, 30 So. 721; Hairston v. Sales, 6 S. & M. 634; American Oil Co. v. Byrd, 137 Miss. 455, 102 So. 542; Batesville S.W. R. Co. v. Vick, 134 Miss. 480, 90 So. 7.

The appellant failed to show by his evidence that he was ready, willing and able to carry out his contract.

Leek Milling Co. v. Langford, 81 Miss. 728, 33 So. 492; Monticello Plywood Box Co. v. Haynie, 167 Miss. 622, 142 So. 497.

In the case at bar appellant introduced no evidence to show that he was able to perform the covenants contained in his contract. Since he did not do this, there was nothing that the court below could do except give a peremptory instruction to find against him.

Argued orally by J. A. Cunningham, for appellant, and by W. C. Sweat, for appellees.

OPINION

Ethridge, P. J.

The appellant was the plaintiff in the court below and filed suit for damages for the breach of a contract made between the appellant and the appellee for the hauling of timber upon certain lands belonging to the appellee. The parties estimated the timber to be ten million feet, and that it would take, approximately, fourteen months for it to be logged. The appellee was to construct a logging road through its timber, and was to pay the appellant one dollar and fifty cents per thousand feet from "a turn around to a half mile," or for timber within one-half mile from the logging track, and fifty cents for each additional half mile or fraction thereof.

The appellant testified that it was understood at the time the logging operations were begun that the appellee expected him to defer logging operations in the bottoms, or swamps, until spring, and that he was to begin by logging the scattering timber; but that, before spring, while the ground was wet and boggy, he was directed to go into the swamps and cut the timber there. He could not use his teams in the swamps, and provided a skidder to get the logs, having help which he had employed to assist him. He further testified that the appellee did not give him a fair scale of the logs he was hauling, and that after he finished logging in the...