Paine v. Sherwood

• Decision Date: 11 January 1875
• Citation: 21 Minn. 225
• Parties: J. M. PAINE & another <I>vs.</I> GEORGE W. SHERWOOD & another.
• Court: Minnesota Supreme Court

21 Minn. 225

J. M. PAINE & another vs. GEORGE W. SHERWOOD & another.

Supreme Court of Minnesota.

January 11, 1875.

Appeal by defendants from an order of the court of common pleas for Ramsey county, Hall, J., presiding, refusing a new trial after verdict for plaintiffs.

E. C. Palmer, for appellants.

Henry J. Horn, for respondents.

YOUNG, J.

The plaintiffs sue to recover the value of lumber and other articles sold and delivered, and of work and labor performed by them for the defendants. After the decision of the former appeal in the action, (19 Minn. 315,) the answer was amended. In the amended answer the defendants set forth the following contract:

                                  "ST. PAUL, December 2, 1870
                

"We agree to furnish Sherwood & Sewall with timber for three bridges on the Northern Pacific Railroad, at fourteen dollars per M., to be delivered either on the cars, or at some convenient place for framing near our mill. Said lumber to be white pine, of good quality, full edged, and absolutely free from wane, and perfectly sound. To be sawed of full size and length, but the size not to exceed the required dimensions more than enough to smooth it. * * * The timber on the different bills to be kept separate, and the whole delivered, if required, in five weeks, and one span in three weeks; payable within ten days after delivery.

                                                 J. M. PAINE & CO
                  December 3, 1870.              SHERWOOD & SEWALL."
                

The answer alleges that all the lumber charged in the statement of the first cause of action set forth in the complaint, amounting to 47,455 feet, and two items comprising 952 feet, were furnished under this contract, and not otherwise, and proceeds as follows: "And said defendants further allege that they forthwith required of said plaintiffs the delivery of the whole timber for said three bridges, amounting to 80,000 feet and more, as said plaintiffs then well knew, within five weeks from said December 3, 1870, and made such demand and requirement at divers times between said day and the first day of January, 1871; but that said plaintiffs did not deliver all said timber, required as aforesaid, within the time provided in said contract, but neglected and refused to do so, and have never delivered the same, or fulfilled said contract on their part, to the damage of said defendants as hereinafter stated, and are not entitled to maintain their said action to recover the price or value of said timber, or any part thereof, referred to herein.

"Second. Further answering, said defendants say that prior to entering into said contract with said plaintiffs, the defendants had contracted to and with the Northwestern Construction Company to erect and construct, in the line of said railroad, three bridges, being the same referred to in said contract with said plaintiffs; that the amount of timber required to complete said bridges was eighty thousand feet and upwards, and said defendants were bound by their said contract with said Construction Company, to have said three bridges built and fully completed on or before March 1, 1871. That said bridges were situated on the line of said Northern Pacific Railroad, and distant from all settlements and places where such timber could be procured in a manufactured state, or sawed or squared at any mill, or any timber suitable for building the same; and that unless said timber, and the whole thereof, could be procured and furnished under said contract by and between the parties thereto, then defendants would necessarily be put to great cost and expense in order to obtain and supply any deficiency; that the kind and quality of timber specified in said contract was peculiar, and suitable only for the construction of the bridges specified in said contract, and not obtainable at any mill or place within any reasonable distance from the location of said bridges, or at all, unless under said contract, or as stated herein; of all which said plaintiffs, at and prior and subsequent to the making of said contract, had due notice and knowledge; that said plaintiffs did not, though often requested so to do, furnish these defendants with timber for said three bridges sufficient to complete the same, or any timber, except about 39,000 feet, which latter quantity they furnished from time to time in the months of December, 1870, and January and February, 1871, as hereinafter stated; that they neglected and refused to furnish the balance of said timber required for said three bridges, to wit, over 40,000 feet thereof, and have never furnished the same or any part thereof, well knowing, at the time and times of their said refusal to furnish the same, that no part thereof could be procured by said defendants, except at the cost and expense, and in the manner stated herein; that the mill of said plaintiffs referred to in said contract was situated on the line of the Northern Pacific Railroad, at a place called the `Junction,' at three miles from Thompson in Carlton county, Minnesota, and there was no other mill for sawing lumber within a distance of thirty miles from said plaintiffs' said mill, and that distance further removed from the location of said three bridges than the mill of said plaintiffs.

"And said defendants allege that said plaintiffs entered upon the performance of their said contract, and began to deliver timber thereunder, at a convenient place for framing, * * * from which the said timber, after being framed, could be loaded on the cars, and transported, over the said railroad, to the said bridge nearest said place, for erection there. That there were no other means of conveyance of the said timber; and that, unless the same was so conveyed before the breaking up of the ice in the streams over which said bridges were to be built, as stated herein, no transportation could be had for said timber to any point beyond the location of said first bridge, the distance between said bridges being about forty miles; and that it would be much more difficult and expensive to put said timber in place in said bridges, after the ice should break up and disappear, than before; all which was well known to said plaintiffs at all the times hereinbefore set forth."

The answer then alleges the loss of time of defendants' men employed in framing the bridges, owing to the fact that the 39,000 feet actually furnished were delivered in small quantities, and with much delay, and the damages resulting to the defendants from this loss of time, (198 days,) amounting to $545.87, are alleged as a counter-claim. As the defendants were permitted to prove this item of damage, and the jury were instructed to allow it, if proved, no question arises on this portion of the case.

The answer proceeds: "That in consequence of the failure and refusal of said plaintiffs to furnish sufficient lumber to build said three bridges, as stated herein, said defendants were compelled to seek for and procure the same elsewhere; that they were unable to procure the same at any mill or place, in the condition required by the terms of said contract, or at all, though they made reasonable effort so to do, but were compelled to, and did, employ a great number of men, and send them into the woods adjacent to said place where said timber was being framed, to procure the necessary timber to supply said deficiency caused by said plaintiffs, as aforesaid; and said men did so procure and cut the necessary timber for said three bridges, and hew, whipsaw and square the same by hand, at great expense of time and money to these defendants, and haul the same to the said place of framing, to be framed, in connection with said timber delivered by said plaintiffs, for use in the erection and completion of said three bridges. That said defendants were compelled to, and did, pay out and expend for the timber so procured, cut, hauled, whipsawed and squared, the sum of $1,232, which was the value of the same then and there, and which said sum these defendants set up as a counter-claim herein."

The answer concludes with an averment that, by reason of the premises, the defendants have sustained loss and damage in the sum of $1,977.89, for which they ask judgment.

The reply admits the making of the contract, denies that any of the lumber mentioned in the complaint was furnished under the contract, except the item of "Lumber used in three bridges, 39,175 feet, $548.45," denies in detail most of the allegations in the answer, and alleges new matter not necessary to be stated here.

The court below ruled that the defendants, by pleading a counter-claim for damages arising from the plaintiffs' breach of the contract, thereby admitted the plaintiffs' right to recover for the timber furnished under the contract, although the contract was entire, and no excuse was shown by the plaintiffs for their failure to perform in full. A like ruling was made upon the former trial, and was sustained by this court, (19 Minn. 315,) on the authority of Mason v. Heyward, 3 Minn. 182, and other cases. There are grave objections to this rule, which would prevent us from adopting it, if the question were res integra; but after all, it is only a rule of pleading, and its practical working is not such as to occasion injustice. The benefits received by the defendant from the performance can always be given in evidence to reduce the damages claimed for the breach, and it is only in cases where the defendant's damages are less than the value of the goods furnished, or work done, under the contract, that the plaintiff can recover for part-performance of an entire contract which he has, without excuse, neglected or refused to perform in full. And the defendant can always avoid this result, and secure all his rights, by pleading the non-performance, merely as a defence to the plaintiff's action, reserving his own claim for damages to be asserted in an independent action against the plaintiff. For these reasons, we do not feel called upon to overrule the...