Growers' Exchange v. John A. Eck Co.

• Decision Date: 11 December 1925
• Docket Number: 4293
• Citation: 66 Utah 340,242 P. 391
• Parties: GROWERS' EXCHANGE v. JOHN A. ECK CO
• Court: Utah Supreme Court

242 P. 391

66 Utah 340

GROWERS' EXCHANGE v. JOHN A. ECK CO

No. 4293

Supreme Court of Utah

December 11, 1925

Appeal from District Court, Third District, Salt Lake County; M. L Ritchie, Judge.

Action by the Growers' Exchange against the John A. Eck Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Cheney Jensen, Martineau & Stephens, of Salt Lake City, for appellant.

Willey & Willey, of Salt Lake City, for respondent.

THURMAN J. GIDEON, C. J., and FRICK, CHERRY, and STRAUP, JJ., concur.

OPINION

THURMAN, J.

On the 7th day of September, 1923, plaintiff, a Utah corporation doing business in Salt Lake City, sold to defendant, an Illinois corporation doing business in Chicago, five carloads of United States No. 1 large Spanish onions at the agreed price of $ 2.75 per hundredweight f. o. b. Utah. It is alleged in the complaint, in substance, that between the 9th day of October and the 1st day of November, 1923, on divers dates, plaintiff placed said onions on board cars in Utah and shipped the same to defendant at Chicago, Ill.; that defendant refused to accept and pay for said onions, and plaintiff was compelled to sell the same to other persons; and that, by reason of defendant's refusal to accept the same, plaintiff suffered a loss aggregating the sum of $ 2,446.83, together with interest thereon from the 7th day of September, 1923, for which sum plaintiff prays judgment. Defendant, answering admits the purchase of the onions and the shipment to it of certain onions, but alleges they were not of the kind and quality purchased by it, but were of an inferior grade, quality, and size, and, for that reason, defendant refused to accept and pay for the same. Defendant denies that plaintiff has been damaged by defendant's refusal to accept said onions, in any sum or amount whatever. The trial court, to whom the case was tried without a jury, entered findings and judgment in favor of plaintiff for the amount prayed for in its complaint. Defendant appeals and assigns as error numerous findings of the court and the admission of evidence over defendant's objection. The contract of sale and the refusal to accept and pay for the onions appear from telegraphic correspondence between the parties attached to and made a part of the complaint.

During the progress of the trial plaintiff offered in evidence the certificates of the inspectors, who inspected the onions at plaintiff's request while they were being loaded on the cars for shipment. There were five of these certificates issued by the Utah inspectors, one for each carload. There were five other certificates issued by Chicago inspectors, on reinspection at plaintiff's request after the defendant announced its refusal to accept the onions. Each of these certificates was admitted in evidence over appellant's objections. The objection was that the evidence was hearsay and incompetent. The Utah inspectors were appointed by the state department of agriculture and their appointment confirmed by the Department of Agriculture of the United States. Each of the Utah inspectors was called and sworn as a witness for the plaintiff. They testified in considerable detail as to the method of their inspection. The inspection appears to have been careful and painstaking. Each carload was inspected at the time of loading. The certificates were issued in accordance with their finding after the inspection was made. In addition to this, testimony was given at the trial by two witnesses, who hauled the onions and loaded them on the cars, and who qualified as witnesses of practical experience. They testified to the same effect as did the official inspectors. No witness who saw the onions before they were shipped testified to the contrary. It would seem, therefore, that at the time the onions were delivered to the defendant on board cars in Utah, the quality of the onions, as conforming to the contract, was established beyond all reasonable doubt. Inasmuch as there was competent evidence to sustain the findings as to the grade, quality, and size of the onions, the error complained of is not reversible, even though it be conceded that the evidence objected to was hearsay and incompetent.

Appellant's principal grounds, however, for a reversal of the judgment, are raised by its exceptions to certain findings of the court. There are five of such findings, one respecting each car of onions. Omitting dates, quantities, and values, and substituting blanks instead, the findings excepted to read as follows:

"That on the day of October, 1923, pursuant to said agreement, the plaintiff loaded on a car at Woods Cross, Davis County, Utah, a carload of onions of the quality specified in said contract, and being United States No. 1 large Spanish onions, consisting of sacks, weighing in all , for which the defendant agreed to pay the sum of $ 908.46, and shipped the same to the defendant at the city of Chicago, state of Illinois, and on the day of said shipment notified the defendant by telegram that said onions had been shipped, but, upon the arrival of said onions at the city of Chicago, state of Illinois, defendant refused to accept and pay for the same, and the plaintiff, as soon as it was advised of the defendant's refusal to accept and pay for said onions, consigned the same for resale to the Continental Distributing Company, a firm in Chicago, engaged in the sale and distribution of produce, who resold said car of onions on the market in the city of Chicago for the sum of , and said Continental Distributing Company, after making the necessary deductions for freight, demurrage, and brokerage, amounting to the sum of , remitted to this plaintiff the sum of ; that, upon the refusal of the defendant to accept said car of onions, plaintiff was compelled, under government regulations, to have a reinspection thereof at a cost to plaintiff in the sum of ; that, by reason of the defendant's failure to accept said car of onions plaintiff suffered damage and loss on said car of ."

The chief objection to the findings is that there is no evidence in the record to show what the market value of the onions was, and that the correct measure of damage is the difference between the contract price and the market price at the time the onions should have been accepted.

In support of its contention appellant quotes excerpts from Comp. Laws Utah, § 5173, subd. 3, Sedgwick on Damages (8th Ed.) § 755, and Mechem on Sales, vol. 2, § 1650. As these excerpts state the general rule upon which appellant relies, we quote the same at length:

The statute cited, subdivision 3, reads as follows:

"Where there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept."

Sedgwick, supra, § 755, reads:

"It is often said that, where the vendor resells the property, the difference between the price obtained at the resale and the contract price is absolutely the measure of damages; or more exactly, the difference between the net proceeds of the resale (the price obtained less the expense) and the contract price. But in other cases it is more properly held that the price obtained at the resale is only evidence of the market value. * * * The question must be determined by all the circumstances. In a case of the sort under discussion, where, after notice, the seller resold the goods at auction, the Court of Appeals of New York said: 'The price obtained after such default, upon a resale, within a reasonable time, although at auction, is evidence of the market value of an article and to be allowed such weight as the circumstances of the sale entitle it to.' And, on the other hand, a resale at private sale, without reasonable notice or efforts to secure the best price possible, and no evidence being offered that the price obtained was a fair one, does not fix the legal measure of damages."

Mechem, supra, § 1650:

"The seller, in these cases, is not bound to resell, in order to ascertain the value; he may either resell or rely upon other evidence of value, at his option. If he does resell, he must, in order to have the result available as evidence of value, pursue, in substance, the same course as that required of a vendor who sells to enforce his lien; that is, as stated in foregoing sections, he must sell in good faith, within a reasonable time, after notice in the customary manner, and at the place of delivery, or, if there be no market there, then in the nearest and most available market."

Respondent, on the other hand, makes a distinction where the contract of sale is executed by the vendor and title passes to the vendee, as in the instant case. Comp. Laws Utah 1917, §§ 5155, 5157. In such case respondent insists that the true rule is stated in 24 R. C. L. p. 109, wherein it is said:

"Where the sale is executed so as to pass title, and the buyer wrongfully refuses to receive delivery, the seller may resell on account of the buyer, without affecting his right, to damages, which, under ordinary circumstances, will be the difference between the agreed price and the amount received on the resale after deducting the expenses thereof."

On the same page, § 377, the author says:

"Where a contract of sale is executory, and the buyer refuses to accept a proper tender of delivery, it is generally held that the seller may, after proper notice, if such notice be necessary, resell on account of the buyer, for the purpose of fixing the general damages; that is, the difference between the agreed price and...