Martin v. Bunker-Culler Lumber Co.

• Decision Date: 02 December 1912
• Citation: 167 Mo. App. 381,151 S.W. 984
• Parties: MARTIN v. BUNKER-CULLER LUMBER CO.
• Court: Missouri Court of Appeals

151 S.W. 984

167 Mo. A. 381

MARTIN v. BUNKER-CULLER LUMBER CO.

Springfield Court of Appeals. Missouri.

December 2, 1912.

Rehearing Denied December 19, 1912.

1. SALES (§ 418) — BREACH OF CONTRACT — DAMAGES.

The damages for breach of defendant's contract to sell plaintiff timber for wagon hubs are not limited to the difference between the contract price and the market value, but include loss of profits, it being understood plaintiff was buying the timber to manufacture into hubs to sell, and plaintiff being unable elsewhere to obtain such timber.

2. EVIDENCE (§ 113) — LOSS OF PROFITS — MARKET VALUE.

As regards damages from loss of profits through defendant's breach of contract to furnish timber for plaintiff to manufacture into hubs to sell, the price at which another had contracted to buy the hubs of plaintiff is some evidence of their market value.

3. SALES (§§ 411, 418)—BREACH OF CONTRACT —PETITION.

The petition showing the agreement that plaintiff should erect a mill on defendant's land for manufacture of hubs, and that defendant should furnish plaintiff timber to manufacture into hubs, that plaintiff erected the mill at a certain cost, and defendant failed and refused to furnish the timber, authorizes recovery of nominal damages; and so states a cause of action.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by George R. Martin against the Bunker-Culler Lumber Company. Judgment for plaintiff. Defendant appeals. Affirmed.

A. W. Lincoln, of Springfield, Wm. P. Elmer, of Salem, and Orchard & Cunningham, of Eminence, for appellant. Munger & Lindsay, of Piedmont, and Lin Shuck, of Eminence, for respondent.

GRAY, J.

This appeal presents the vexed and difficult problem as to when the profits lost by the party defeated of his contract by the wrongful act of the other contracting party can be recovered in a suit for damages based on a breach of the contract.

The defendant in March, 1909, owned a sawmill at Bunker, Mo., and also a large body of timber in that vicinity. On the 9th of March the plaintiff and defendant entered into a contract in writing, by the terms of which the defendant was to furnish plaintiff, free of rent for five years, a suitable sight at Bunker for a hub manufacturing plant; also agreed to sell and deliver to the plaintiff on cars at the hub yard during the said term of five years sufficient oak timber to make 600,000 wagon hubs, and to deliver one-fifth, or 120,000, of said hubs during each year of the contract. The delivery was to be made at the rate of 10,000 per month, with a proviso that the number might be exceeded during the months of September, October, November, and December of each year, during which four months a total delivery of 80,000 hubs was authorized. The contract contained the further provision that in case the 80,000 hubs were delivered in said four months the delivery during the months of April, May, June, and July following might be reduced accordingly, and that, if an average of 20,000 hubs had been delivered during said fall months, the delivery during the other months should not exceed 5,000 per month. The plaintiff agreed to erect at his own cost upon the ground so furnished by the defendant, a hub manufacturing plant, with all necessary warehouse buildings, and have the same ready for operation not later than November 1, 1909, and to pay the defendant 10 cents per hub for all timber delivered to him under the contract. The contract also provided that all timber to be delivered was subject to inspection by the plaintiff before loaded on the cars, and that the defendant was to be released of his obligation to furnish the hubs in case it became impossible to make delivery of them owing to defendant's inability to obtain said hub timber along with its regular logging operations.

The evidence on the part of the plaintiff tended to prove that, after the execution of the contract, the plaintiff went to Chicago, and there made a contract for the sale of all of his hubs, and that he purchased in Ohio all the machinery for his plant, and caused the same to be shipped and erected on the land of the defendant, and was ready to receive hub timber on November 1, 1909, and so notified the defendant; that the defendant did not furnish him any hubs until the latter part of January, 1910, and then only about 2,500, and to August 1, 1910, only furnished timber for about 10,000 hubs; that the plaintiff repeatedly made demands on defendant for the hub timber, and kept expert millmen ready to operate the hub mill until the 1st of August, 1910, at which time he let them go. The plaintiff offered further testimony tending to prove that he had inspected hub timber for about 140,000 hubs, and that defendant shipped such timber to its sawmill, and did not deliver the same to plaintiff's hubmill. The defendant admitted it furnished no hub timber until in January, and that to the 1st of August, 1910, it had delivered less than 10,000 hubs; that during said time it was cutting, in its regular logging operations, but little timber that met the requirements for hubs, and that much of it that really did meet the requirements was rejected by the plaintiff's inspector; that, if plaintiff had not abandoned his contract, defendant would have been able in the future to have supplied him with the amount of hub timber called for in the contract. The case was tried before a jury in Shannon county, where it had been taken on change of venue from Dent county, resulting in a verdict in favor of the plaintiff for $1,317.27, which amount was reduced by a set-off claim of the defendant of $67.27, leaving a balance of $1,250, for which a judgment was rendered against the defendant. In due time the defendant perfected its appeal to this court. The defendant has seen fit to limit the issues in this court to three, and we will limit our investigation accordingly.

It is appellant's first contention that the proper measure of damages is the difference between the market value of the hub timber at the place of delivery and the contract price. The recognized leading case is that of Hadley v. Baxendale, 9 Exch. 354, and it has been approved by most of the American courts and by the Supreme Court of this state in Mark v. Cooperage Co., 204 Mo. loc. cit. 265, 103 S. W. 20. The rule as stated in that case is that where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach should be such as may fairly and reasonably be considered either arising naturally—i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it— and that if the special circumstances under which the contract was actually made were communicated, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated, but on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he at the most could only be supposed to have had in contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances from such a breach of contract. In Hammond v. Beeson, 112 Mo. 190, 20 S. W. 474, Judge MacFarlane said: "It is impossible to lay down any rule of damages for breach of contract that can be justly applied to all cases of any particular class. Each case must in a great measure be determined upon...