O. J. Barnes Co. v. Sheggerud

• Decision Date: 19 July 1919
• Citation: 173 N.W. 950,43 N.D. 279
• Court: North Dakota Supreme Court

173 N.W. 950

43 N.D. 279

O. J. BARNES COMPANY, a Corporation, Respondent, v. M. C. SHEGGERUD, Appellant

Supreme Court of North Dakota

July 19, 1919

Rehearing denied September 8, 1919.

From a judgment of the District Court of Grand Forks County, Cooley J., defendant appeals.

Reversed and remanded.

Reversed and remanded.Neither party recovered costs on this appeal.

W. J Mayer, for appellant.

"The general rule with reference to the measure of damages for breach of contract of sale, whether the breach was by the vendor or the vendee, is that the injured party is entitled to recover the difference between the contract price of the article sold and the market value thereof at the time and place of delivery."Note in 57 L.R.A. 193.

McIntyre & Burtness, for respondent.

"The circumstances attending the making of a contract are entitled to great weight in arriving at the intention of the parties, and, if the contract is ambiguous or uncertain, may be resorted to in determining the proper construction; and this rule refers not only to the general conditions under which the contract was made, but also to legal and physical conditions."35 Cyc. 97.

"Though an agreement to sell goods f. o. b. cars at a designated place will ordinarily be regarded as an agreement to deliver the goods at that place, the meaning of the term depends on the connection in which it is used."Barnett & R. Co. v. Fall,131 S.W. 649.

"The words 'f.o. b.'do not necessarily mean that title is to pass when delivered to a transportation company, but the whole contract must be looked to to determine where delivery is to be made."State v. Patterson(Wis.)120 N.W. 227;State v. Park,165 N.W. 289;Niemeyer Lbr. Co. v. Ry. Co.(Neb.)74 N.W. 692;United States v. Andrews & Co.207 U.S. 229, 52 L.Ed. 185;Herring Co. v. Smith(Ore.)72 P. 704.

"If the words 'f.o. b.'are used in connection with the words fixing the price only, they will not be construed as fixing the place of delivery."35 Cyc. 174.

"Where by the terms of the contract the seller is to select and deliver the goods at any particular place, or in any particular manner, the goods ordinarily remain his property and at his risk until they are delivered in accordance with the agreement."1 Mechem on Sales, § 733;McNiel v. Brown(N. J.)26 Am. St. Rep. 445;Hart-Parr Co. v. Finlay, 31 N.D. 130.

"Where the buyer reserves the right of inspection, until inspected at the place where the contract provides therefor, there is no delivery."Will v. Stone(Ind.)69 N.E. 698;Eaton v. Blackburn(Ore.)96 P. 870;35 Cyc. 288.

The measure of plaintiff's damage is fixed by our statute.Comp. Laws 1913, §§ 7153,7178,7179.

Plaintiff can recover the profit which he would have made on these potatoes had they been delivered to him.The right of the plaintiff to recover these profits has been upheld in a number of cases.Lilly v. Lilly(Wash.)81 P. 852;Shadvolt v. Topliff(Wis.)55 N.W. 854;Wakeman v. Wheeler & Wilson,101 N.Y. 205;Trego v. Arave (Idaho)116 P. 119;Sedro Veneer Co. v. Kwopil(Wash.)113 P. 1100;Schwab Safe Co. v. Snow,140 P. 761;Baker v. Shaw, 138 P. 888;35 Cyc. 644.

"Even conceding that this contract of sale provided for delivery f. o. b. Winnipeg, the defendant nevertheless must load the potatoes properly in a car at Winnipeg."35 Cyc. 160;State v. Peterson,120 N.W. 227;Culp v. Sandoval,159 P. 956;Safe Co. v. Bank(S.D.)125 N.W. 572.

OPINION

CHRISTIANSON, Ch. J.

Plaintiff brought this action to recover damages for the breach of a contract whereby defendant agreed to sell to the plaintiff a carload of potatoes.The defendant admits the contract and admits that he breached it, but contends that the plaintiff sustained no damages by reason of such breach.The defendant, also, counterclaimed for damages for the alleged breach by the plaintiff of a second contract of sale.The action was tried to the court without a jury.The court made findings, and ordered judgment, in favor of the plaintiff for $ 287.33, and interest, and dismissed the counterclaims.Defendant has appealed from the judgment.

The undisputed evidence shows that the plaintiff and defendant are both residents of Grand Forks, North Dakota.On January 13, 1913, at Grand Forks they entered into a written agreement whereby the defendant agreed to sell to the plaintiff"one car of 40,000 pounds or more white potatoes at $ 1.10 per bushel sacked f. o. b. Winnipeg, we to guarantee safe delivery at Grand Forks, shipped soon as possible--free from culls," and the plaintiff agreed to buy such potatoes on the terms stated.

The evidence shows that the plaintiff has been engaged in the business of buying and shipping potatoes for about eleven years, and that the defendant knew that plaintiff purchased said potatoes for the purpose of reselling them.Barnes testified: "He[Sheggerud] was to get them as far as Grand Forks in a condition free from frost;" and that he(Barnes)"explained to Sheggerud that if he got the potatoes this far that we would take them on from here with other cars."

It appears that the defendant did not have any potatoes at the time he made the agreement with the plaintiff, but that he had had some talk with a dealer in Winnipeg named Davis, in which Davis had asked defendant to find a buyer for a carload of white potatoes.It was this car of potatoes defendant had in mind when he made the agreement with plaintiff.After the agreement was signed, defendant went to Winnipeg and found that Davis had sold the potatoes to another party.On January 19, 1917, the defendant wired plaintiff: "Partner sold the potatoes to Minneapolis.If you can handle two cars at $ 1.15 let me know."Plaintiff immediately replied: "Our man Warberton is at McNaughton Fruit Auction Company, see him or telephone us how about cabbage.We shall expect the car contracted for, as we do not make one-sided deals, but will take two cars one fifteen our man will help load and pay for them."Upon receiving this telegram the defendant got into communication with Warberton, and some conversation was had between them.The counterclaims are predicated upon the alleged fact that defendant obtained three carloads of potatoes in accordance with the telegrams, and that Warberton failed to come and inspect them in accordance with the arrangement made between defendant and Warberton.There was a square conflict between Warberton and the defendant upon this question, and the trial court believed Warberton's version of the transaction.Under the facts found the trial court properly dismissed the counterclaims, and we see no reason for overturning the findings.Strictly speaking the question is not before us, for defendant has submitted no argument...