Rahm v. Deig

• Decision Date: 14 December 1889
• Docket Number: 13,966
• Citation: 23 N.E. 141,121 Ind. 283
• Parties: Rahm v. Deig
• Court: Indiana Supreme Court

23 N.E. 141

121 Ind. 283

Rahm v. Deig

No. 13,966

Supreme Court of Indiana

December 14, 1889

From the Vanderburgh Ciruit Court.

Judgment affirmed, with costs.

D. B Kumler and G. F. Denby, for appellant.

A. P Hovey and G. V. Menzies, for appellee.

OPINION

Olds, J.

This is an action by the appellee against the appellant on a written contract, which is as follows:

"Evansville, Ind., August 25th, 1886.

"I have this day sold William Rahm, Jr., my crop of corn, estimated at thirty-eight hundred and fifty (3,850) bushels (or 1,500 sacks), which I am to shell, fan, sack, and deliver on the Mount Vernon wharf-boat free of storage and charges to steamboats, on or before the fourth day of September next; all to be good, sound, merchantable white corn, and put up and delivered, as stated above, in good order and condition. And I further agree to properly dunnage the corn, and protect the same from exposure to stock. Said William Rahm, Jr., to furnish bags and twine to hold said corn. Said William Rahm, Jr., is to pay me forty (40) cents per bushel for said corn as soon as delivered in accordance with this contract; this price to include all commissions, etc. Received on the above contract dollars.

"(Signed). John B. Deig."

The complaint declares upon the contract, and alleges a failure and refusal of the defendant to accept and receive the corn. The defendant answered, admitting the purchase of the corn, but avers a compliance on the part of the defendant, and a willingness to accept the corn, and a failure of the plaintiff to deliver good, sound, merchantable white corn, and that plaintiff undertook to deliver to defendant corn, a large portion of which was unsound, and differing from that called for by the contract. This paragraph argumentatively denies the averments of the complaint as to a compliance with the contract on the part of the plaintiff.

The defendant also filed a paragraph of counter-claim, based upon the contract, and setting out a copy of it, and averring a compliance with it on his part; alleging, further, that he purchased the corn for resale, which plaintiff well knew; that after the execution of the contract the defendant resold the corn to persons in Nashville, Tenn., which plaintiff well knew, at forty-one cents per bushel; that plaintiff failed to deliver the corn, whereby defendant was unable to comply with his contract with the persons to whom he had resold it, and that by reason of such failure on the part of the plaintiff he had suffered damage to the extent of the profit he would have realized by the resale of the corn had it been delivered as per contract.

A demurrer was filed to this paragraph of counter-claim, and sustained, and the ruling is assigned as error. It is contended that the paragraph is good, on the theory that it alleges a breach of the contract, and the defendant is entitled to damages in the amount of the profit he would have made by his contract of resale, and if it is not good upon that theory that in any event it states facts sufficient to entitle him to general damages.

By this paragraph it is clear that the defendant sought to plead and recover the profit which he would have realized by the resale of the corn under the contract which he had made for the resale of the same.

It is well settled by the decisions of this court that if a pleading is not good on the theory on which it is pleaded it is not error to sustain a demurrer to it. Louisville, etc., R. W. Co. v. Thompson, 107 Ind. 442, 8 N.E. 18; Henry v. Stevens, 108 Ind. 281, 9 N.E. 356; First Nat'l Bank, etc., v. Root, 107 Ind. 224, 8 N.E. 105; Western, etc., Co. v. Young, 93 Ind. 118; Mescall v. Tully, 91 Ind. 96.

The general rule is, that a party who fails to deliver goods according to the terms of his contract, is liable for the value of the goods so to be delivered in the open market at the time of the failure, and the measure of damages for the breach of a contract to sell and deliver goods is the difference between the contract price and the market value of the goods at the time and place fixed by the contract for the delivery. Vickery v. McCormick, 117 Ind. 594, 20 N.E. 495; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N.E. 686.

In 1 Sutherland Damages, p. 160, speaking of the measure of damages, it is said: "For breach of other contracts, than to pay money, the injured party is entitled to compensation for gains prevented and losses sustained. The gains prevented are those which would accrue to the contracting parties from the mutual performance of the contract;" and further it is said: "By this general rule, the party thus injured by a total breach, is entitled to recover the profits of the particular contract, which he shows, with sufficient certainty, would have accrued, if the other party had performed. He is entitled to recover proportionately for a partial breach. And to ascertain these profits, the nature and the special purpose of the contract, a sub-contract, or other subsidiary and dependent arrangement, within the contemplation of the parties at the time of contracting, may be taken into consideration."

The case of Wetmore v. Pattison, 45 Mich. 439, 8 N.W. 67, was a suit upon a contract by which Pattison had contracted to deliver certain saw-logs to Wetmore and others, the plaintiffs. After the making of the contract the plaintiffs entered into a contract with a car company to furnish the company the lumber to be cut out of the logs. Pattison failed to deliver the logs, and as a consequence the plaintiffs failed in their contract to deliver the lumber, and it was insisted that the plaintiffs were entitled to recover for the loss sustained by reason of their failure to deliver the lumber, and the court says: "This is not a correct view. The logs were not contracted for on the strength of the lumber agreement. The latter had no existence when the former was entered into. The plaintiffs after having made their contract with the defendant were at liberty, no doubt, to embark in such enterprise as they thought proper on the strength of it. It was a question of business prudence how far it would be wise or safe to rely on the agreement with defendant. But they were not empowered to enter into such scheme or arrangement as they might choose, in reliance on his contract, and make him responsible in the event of his failure for whatever losses might happen through such secondary operations. To hold otherwise would be to visit the failure of performance with an amount of liability not dependent on the contract, but on the conjectural possibilities of any scheme built upon the contract by the party to whom performance is due. The damages for which one may be held liable in a contract of this nature, are such as flow directly from his own default, and which it is reasonable to suppose were within the contemplation of the parties on their entering into the contract."

In the case of Carpenter v. First Nat'l Bank etc., 119 Ill. 352, 10 N.E. 18, the question involved...