Hogg v. Edley

• Decision Date: 21 November 1930
• Citation: 236 Ky. 142
• Parties: Hogg et al. v. Edley et al.
• Court: United States State Supreme Court — District of Kentucky

236 Ky. 142

Hogg et al. v. Edley et al.

Court of Appeals of Kentucky.

Decided November 21, 1930.

1. Contracts. — Agreement by timber buyer with sawyer to saw timber into lumber on timbered tract held not unilateral.

The contract under which timber buyer purchased timber required that it should be removed from the land within 18 months from its date, and, in an action by a sawyer on a contract to saw the timber on the premises, defendant set up a counterclaim wherein he alleged that he had forfeited certain logs not removed from the premises in time because of sawyer's delay in finishing work; sawyer having knowledge of time limit and having promised to complete work.

2. Logs and Logging. — Generally, measure of damages for sawyer's breach of contract is difference between agreed price and cost of having remaining logs sawed.

3. Damages. — Generally, violator of contract is liable in compensatory damages for natural and proximate consequences of breach.

4. Damages. — Violator of contract is not liable for remote speculative losses unless reasonably within contemplation of parties at time of making contract or unless violator was aware thereof in sufficient time to correct.

5. Damages. — Damages arising out of special circumstances surrounding contract are recoverable for breach, where knowledge of special circumstances by defaulting party at time of making contract is shown.

6. Logs and Logging. — Where sawyer knew, when contracting, or in time to prevent, that owner would forfeit logs not removed within certain time, held sawyer was liable for damages from forfeiture caused by reason of sawyer's breach.

7. Logs and Logging. — If sawyer, knowing, when contracting, that owner must remove timber from land within certain time on penalty of forfeiture, breached contract, held measure of damages was value of unsawed logs, unless sawyer alleged and proved avoidance.

Requirement to prove facts establishing such avoidance cast burden on sawyer to show that timber owner could have removed logs at less expense than their value, or to allege and prove that owner could have procured another to saw the logs.

8. Logs and Logging. — If timber owner could have avoided total loss by procuring another sawyer, held measure of damages for breach of sawyer's contract would be difference between agreed price and cost of procuring another sawyer.

Appeal from Letcher Circuit Court.

ASTER HOGG for appellants.

HAWK & LEWIS for appellees.

OPINION OF THE COURT BY CHIEF JUSTICE THOMAS

Reversing.

Appellants and defendants below jointly owned a body of timber in Letcher county, and they entered into a written contract with appellees and plaintiffs below to saw certain dimensions of it into lumber, the defendants getting out the logs and delivering them to plaintiffs' mill, which was located on the timbered tract. The contract under which defendants purchased the timber required that it should be removed from the land within eighteen months from the date thereof, which was March 16, 1927, eighteen months from which would be September 16, 1928, by which time the timber under the contract for its purchase would have to be removed. The contract with plaintiffs was made shortly after the purchase of the timber, and immediately following that they installed their mill. After the expiration of eighteen months, plaintiffs filed this action against defendants in the Letcher circuit court to recover a balance of $225.14, which they claimed was due them from defendants for the sawing done under the contract.

Defendants answered, and admitted the account sued on, but pleaded two items as offsets thereto, the first of which was a violation of the contract by failing to properly saw the lumber in workmanlike manner, by reason of which defendants sustained damages in the sum of $250; and the second of which was that, at the time the contract for the sawing was entered into plaintiffs were notified of the time limit for the removal of the timber and entered into the sawing contract with that knowledge, and that they were further expressly notified on several successive days for four weeks immediately preceding the expiration of that time and urged to manufacture the logs that had been prepared by defendants, at least 100 of which were on the millyard, and about 200 or more in piles near thereto, but that they persistently failed and refused to do so in violation of their repeated promise, and that they suffered the time limit for the removal of the timber to expire, whereby defendants lost the logs, to their further damage in the sum of $500; and they pleaded the aggregate amount of their damages of $750 as a counterclaim.

That pleading was by agreement controverted of record, and the parties went to trial, resulting in a verdict for plaintiffs for the full amount of their claim and the disallowance of any credit for either of the items in the counterclaim. Defendants' motion for a new trial was overruled, and, from the judgment pronounced on the verdict, they prosecute this appeal, and urge as a ground for reversal the single question of the refusal of the court to submit to the jury the question of damages embodied in the second item of the counterclaim; i.e., the failure of plaintiffs to saw the logs that had been prepared by defendants, resulting in their forfeiture to the seller of the timber after the expiration of the eighteen months.

The reason for the court's declining to submit that item to the jury is not made clear from the record. During the introduction of the evidence the court first intimated that it was his opinion that the contract between plaintiffs and defendants for the sawing of the timber was unilateral in its terms, and for...