Halstead Lumber Co. v. Sutton
| Decision Date | 11 April 1891 |
| Citation | 26 P. 444,46 Kan. 192 |
| Parties | HALSTEAD LUMBER CO. v. SUTTON et al. |
| Court | Kansas Supreme Court |
1. It is the duty of a party who has suffered an injury from the non-performance of a contract to take reasonable measures to make the injury or damage for which he intends to hold the other party liable as light as possible.
2. Upon the breach of a contract to deliver merchandise, the vendee, as a general rule, is entitled to recover as damages the difference between the purchase price and the market price at the time and place of delivery, together with interest.
3. Under special circumstances, as where merchandise is purchased for a particular purpose, and to be delivered at a specified time, and where it cannot be purchased in the market at the place of delivery, and these facts are known to the vendor, the general rule of damages would be inadequate to compensate the vendee for a delay or a non-delivery of the merchandise, but in such a case he would be entitled to recover the actual loss directly and naturally resulting from the default of the vendor.
4. A party complaining that the general finding and judgment of the court includes elements of damage not warranted, or that the court adopted an incorrect measure of damages, should obtain special findings or some statement or ruling of the court, showing the considerations upon which the judgment rests; and held, that the record in the present case does not properly present case does not properly present these questions for review.
Error from district court, Rice county; MANSEL R. CLARK, Judge.
A. M Lasley, for plaintiff in error.
J. W Brinckerhoff and C. F. Foley, for defendants in error.
The plaintiff brought this action to recover from defendants a balance claimed to be due for lumber sold and furnished to defendants. The defendants alleged payment in full as a first defense, and for the second and third defenses counter-claims were pleaded. The cause was tried without a jury, and the court found the balance unpaid upon the lumber furnished was $204.40; that the lumber, however, was not delivered in accordance with the contract of sale; and that defendants who had contracted to furnish the lumber purchased to certain other parties, were compelled to pay damages in consequence of plaintiff’s failure, and that they were damaged by the delay and non-delivery of the lumber in the sum of $171; and the court adjudged that plaintiff recover the sum of $29.40. Plaintiff is dissatisfied with the amount awarded, and comes here asking a reversal, but the condition of the record is such that a satisfactory determination of the principal question discussed cannot be made. The plaintiff objected to the introduction of any evidence under the second count of the answer, and upon the ground that it failed to state facts sufficient to constitute a defense. In brief, the count alleges that defendants contracted to deliver certain lumber at Lyons, Kan., for a certain purpose, and at a specified time, but that they failed to deliver it at the time agreed upon, nor until a long time afterwards, whereby defendants suffered loss and damage to the extent of $150, which they asked might be allowed as a counter-claim against any amount recovered by plaintiff. The principal objection urged is that the count showed an acceptance of the lumber at a later time than that agreed upon, and that this acceptance is a waiver of the objection to deliver according to the contract. The allegations in the count, however, do not bear out the claim. It is not alleged that there was an acceptance by the defendants of the lumber furnished, and, even if the count contained such an allegation, it would not constitute a waiver. The defendants, who were regularly engaged in the lumber business, could accept the lumber when it arrived, and still recover for any actual loss suffered by them which was the direct result of the plaintiff’s failure to deliver according to contract. The acceptance and use of the material lessened the injury of the defendants, and correspondingly reduced the plaintiff’s liability for its failure. The testimony in the case discloses that the lumber was of such a character as could not be procured in the market at Lyons, and that the owners of the buildings for whom it was contracted were daily incurring expense and loss by the plaintiff’s failure to provide the lumber at the time specified. It was the duty of the defendants, therefore, to make the injury as light as possible by taking and using the material upon its...
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Long v. American Surety Company
... ... Shurter v. Butler, 43 Tex. Civ. App. 353, 94 S.W ... 1084; Halstead Lumber Co. v. Sutton, 46 Kan. 192, 26 ... P. 444; Feland v. Berry, 130 Ky. 328, 113 S.W. 425; ... ...
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Long v. Am. Sur. Co. of N.Y.
...to have been within the contemplation of the parties. Shurter v. Butler, 43 Tex. Civ. App. 353, 93 S. W. 1084;Halstead Lumber Co. v. Sutton et al., 46 Kan. 192, 26 Pac. 444;Feland v. Berry, 130 Ky. 328, 113 S. W. 425;Sutton v. Wanamaker (Sup.) 95 N. Y. Supp. 525;Illinois Central Railway Co.......
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Cain v. Grosshans & Petersen, Inc.
...contract supplanted it.' The defendant calls attention to Holly v. City of Neodesha, 88 Kan. 102, 127 P. 616, and Halstead Lumber Co. v. Sutton, 46 Kan. 192, 26 P. 444, to support its argument that no waiver would have resulted from plaintiffs' acceptance of the subsequent offer. We believe......