Minneapolis Threshing Machine Co. v. Bradford
| Decision Date | 07 February 1921 |
| Parties | MINNEAPOLIS THRESHING MACHINE COMPANY, Respondent, v. W. E. BRADFORD, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Pettis County.--Hon. Hopkins B Shain, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
George F. Longan for respondent.
Wilkerson & Barnett and Lamm, Bohling & Lamm for appellant.
Having sold a threshing outfit to defendant and accepted a chattel mortgage thereon for the unpaid purchase money, plaintiff brought replevin based on said chattel mortgage to recover possession of said outfit; and under the writ it was taken from defendant, who, in his answer, demanded its return and set up as a defense a counterclaim for certain damages based upon a breach of plaintiff's contract in selling him the outfit.
Plaintiff introduced the chattel mortgage and rested as soon as it was disclosed that three of the unpaid notes, aggregating $ 1552 of principal, were due at time of the institution of suit and that the value of the property was agreed upon as being $ 4365.30. Thereupon the defendant introduced evidence to show that the plaintiff contracted to sell him, as a necessary part of said outfit, a Heineke Rotary Band Cutter and Feeder but had substituted a Garden City Feeder instead; and when defendant refused to accept the outfit, plaintiff agreed to furnish the Feeder bargained for in a few days and renewed said promise from time to time, but never did so. That finally after much delay, plaintiff informed defendant that it could not furnish the Heineke Feeder, whereupon defendant ordered one elsewhere; that he was thereby delayed in beginning threshing from the 17th of June until the 16th of July. Defendant then attempted to show damages arising out of said breach, but the court ruled that the measure of his damage would be confined to the value of the Heineke Feeder that was not furnished, with nominal charges for the breach and interest upon any money invested for the time the feeder was not furnished, and excluded all evidence offered by defendant to show any other damage. During the trial the plaintiff voluntarily gave a credit upon the notes for the price of the feeder which it never furnished, together with the freight bill thereon and $ 5 expense for coming after it. When the evidence of the damage claimed by defendant was excluded, the court gave a peremptory instruction to find for plaintiff, which was accordingly done, and defendant appealed.
Plaintiff had a local agent in Sedalia who along about the 15th or 20th of May, 1919, solicited defendant, a farmer in the neighborhood, to purchase a threshing outfit of plaintiff, one of the necessary and component parts of which was to be a Heineke Rotary Feeder and Band Cutter. It was sold by sample and the outfit was to be ordered and sent to Sedalia.
Defendant offered to show that he told the agent that fourteen farmers had met and engaged him to thresh their wheat consisting of about 500 acres; that the farmers in another neighborhood had also had a meeting and engaged him to do their threshing, and certain other farmers had privately contracted with him to do their threshing; that he also told plaintiff he had these jobs and if he took the outfit at all it had to be ready for delivery by the time wheat threshing season opened, and he gave the order upon the agreement that the outfit would be on hand.
The outfit came, but instead of there being a Heineke Feeder, plaintiff sent a Garden City Feeder instead. Defendant, having contracted for a Heineke Feeder and the order for the threshing outfit being one entire transaction for one complete threshing appliance of which the feeder was a necessary part, refused to accept the outfit. Thereupon the local agent put defendant in telephonic communication with plaintiff's superintendent in Kansas City and the defendant was assured that the Heineke Feeder would be sent in a few days. Defendant at that time also told plaintiff that he had the different jobs of threshing above mentioned and unless he could get the feeder within the next three or four days, he would not sign the chattel mortgage or notes; that if the feeder did not come within that time, he would sustain big damages, he would lose all these jobs and then could not afford to buy the machine. There was no offer at any time to lend him the Garden City Feeder but only an offer to sell it to him at a price demanded by plaintiff. Defendant was assured he would get the Heineke Feeder not later than the 17th of June, 1919, which was the beginning of the threshing season; and upon this promise and on this condition he, on June 16, 1919, executed the chattel mortgage and notes, the former describing and covering a Heineke Feeder, and took the outfit, except the feeder which, as stated, had not come. Thereafter, from day to day, promises were made that the feeder would arrive, but it did not come, and finally plaintiff, in about 12 or 15 days, notified defendant that it could not send that kind of a feeder; whereupon defendant ordered one elsewhere and it came about a month after the receipt of the other machinery bought of plaintiff, so that defendant was prevented from doing any threshing from the 17th day of June, until the 16th day of July, 1919, or twenty-six working days in that period. Defendant offered to show that his own crop of wheat, consisting of fifteen acres, was ready to thresh on June 16, 1919, and to avoid damage should have been threshed not later than June 25, 1919; that he was unable to get such wheat threshed and it was totally destroyed. He further offered to prove that he lost the jobs of threshing he had secured, and also offered to prove the amount and extent thereof, what he would have received therefor, less what it would have cost him to do the work, that 24 of the 26 working days, in which he was prevented from threshing, were clear days in which such threshing could have been done and offered to prove the amount of threshing he could have done and the amount of loss he had sustained by reason of his being prevented on account of plaintiff's breach of contract.
The court excluded defendant's evidence on the ground that he was attempting to prove loss of profits and that such cannot be shown as consequential damages for breach of contract. While such, no doubt, is the general rule, broadly speaking yet there are exceptions, and this, we think, is one of them. Many cases can be found denying recovery for loss of profits, but it will be found that such denial is based on one or both of the following grounds, namely, 1, because the profits were uncertain, conjectural, or speculative in character and not susceptible of being reasonably ascertained; 2, because they were not deemed to have been within the contemplation of the parties to the contract. On the first ground, such damages are refused because they are not susceptible of definite proof, and on the second, they are denied because they are outside the legitimate scope of the breached contract. But does either of these two classes of conditions exist in the case at bar? Here the threshing outfit was bought for a special purpose to be delivered at a particular time and place in view of certain contracts and conditions. And all of these things were made known to the vendor. If now, the only measure of damages is the difference between the contract price and the market value, then defendant is wholly without compensation for the loss he has sustained. But the general rule of damages for a breached contract is that compensation should be equal to the injury, subject to the condition that the damages be confined to those naturally and proximately resulting from the breach and are not within the two classes above specified. [Sutherland on Damages (4 Ed.), p. 187.] The same work on page 228, after stating the...
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