Ramsey v. Tully

• Citation: 12 Bradw. 463,12 Ill.App. 463
• Parties: W. P. RAMSEY ET AL.v.THOMAS TULLY ET AL.
• Decision Date: 31 October 1882
• Court: United States Appellate Court of Illinois

12 Ill.App. 463

12 Bradw. 463

W. P. RAMSEY ET AL.

v.THOMAS TULLY ET AL.

Appellate Court of Illinois, First District.

October Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed January 3, 1883.

This was assumpsit, brought by appellees against appellants to recover for brick sold and delivered by the former to the latter in the months of June, July and August, 1881. The declaration contains the common counts only, and alleges that Ramsey and Leith were co-partners doing business under the firm name of M. Leith & Co.

The defendants filed separate pleas. Ramsey pleaded the general issue and a plea, duly verified by affidavits, denying partnership and joint liability. Leith pleaded the general issue and a special plea, setting up, in substance, that the brick were sold and delivered to him under a contract in and by which the plaintiffs agreed that for the consideration of nine dollars per thousand, to be paid to them, they would sell and deliver to him all the brick needed for a certain sewer known as the Root street sewer, then being constructed by him, and would deliver for that purpose 25,000 brick per day; that the plaintiffs, though notified and requested by defendant to deliver the brick, refused and failed to do so, but delivered only 7,000 per day, and that by reason of such failure Leith was put to great expense and was compelled to pay workmen larger sums of money, to wit, $5,000, which he would not otherwise have been compelled to pay, and that he was damaged by the delay in procuring his pay for the construction of the sewer in the sum of $1,000, and was compelled to and did, in consequence of such delay, expend money in furnishing extra labor and materials, whereby he suffered damage to the amount of $2,000; that his damage caused by the plaintiffs' failure to deliver the brick as agreed amounted in the aggregate to the sum of $6,000, out of which he offered to recoup, set-off and allow the amount of the plaintiffs' demand.

Issues of fact were joined on these pleas, and there was a jury trial resulting in a verdict for the plaintiffs for $--, for which sum the plaintiffs had judgment and the defendants appealed.

The evidence tended to show the making of the contract for the sale and delivery of the brick as alleged in Leith's special plea, and it appeared the brick were not delivered at the rate of 25,000 per day, but that the average daily delivery was less than half that amount, thereby causing a delay in the building of the sewer for a considerable period, the work not being finished until the latter part of August. The evidence also tended to show that Leith was building the sewer under a contract with the town of Lake; and that Tully sold and agreed to deliver the brick in question, with knowledge that they were being purchased by Leith for the special purpose of fulfilling that contract; and with knowledge that by such contract the sewer was to be completed by July 20, 1881.

It further appears that common brick would not answer for sewer work, but that brick of a particular kind were required, and that from time to time, as the work progressed, appellants notified appellees that they were not delivering brick as needed, and that the work was being delayed in consequence.

On the trial appellant Leith offered to show that it was impossible to procure brick elsewhere; that he endeavored to do so, but that none were to be had, and that he was compelled to, and did, rely wholly upon appellees under his contract with them for brick; that he was delayed and compelled to stop work from time to time for want of brick; that he had to keep under pay high-priced hands, and put them upon inferior work, so that when he had sewer brick he could go on with the job; that in consequence of the delay in completing the sewer he failed to obtain timely estimates from the town of Lake, whereby he sustained damage. But the court being of opinion that inasmuch as the brick were all actually delivered and received by the defendant, though after the time agreed upon, such acceptance was a waiver by the defendant of his right to claim special damages for a breach of the contract set up in his special plea, the court holding that the difference between the contract price and market price of the brick, at the time they were agreed to be delivered, constituted the only measure of damages; to which ruling the defendant excepted.

Messrs. GARY, CODY & GARY, and Mr. J. H. GILBERT, for appellants; that the acceptance by appellants of balance of brick after time agreed upon for its delivery did not waive their right to recoup damages occasioned by appellees' failure to deliver at time agreed, against appellees' claim for the price of the brick actually received, cited Waterman on the Law of Set-off, § 515; Barber v. Rose, 5 Hill, 76; Nibbe v. Brauhn, 24 Ill. 268; Snell v. Cottingham, 76 Ill. 161; Tobey v. Price, 75 Ill. 645; Evans v. C. & R. I. R. R. Co. 26 Ill. 189; Waterman v. Clark, 76 Ill. 428.

The doctrine of recoupment is the doctrine of natural equity: Read v. McAllister, 8 Wend. 115; Streeter v. Streeter, 43 Ill. 162; Waterman on Law of Set-off, § 463; Masterdon v. Mayor, 7 Hill, 70.

The natural and proximate effect of the breach of contract or duty complained of, may be proven to assist in estimating the damages, and each case necessarily depends upon its own peculiar features: Sleuter v. Wallbaum, 45 Ill. 44; Miller v. Mariners' Church, 7 Greenl. 53; Taylor v. Read, 4 Paige, 572; Priestle v. N. I. & C. R. R. Co. 26 Ill. 206; Waters v. Town, 20 Eng. L. & Eq. R. 412; Frazer v. Smith, 60 Ill. 146; I. C. R. R. Co. v. Cobb, 64 Ill. 128; C. B. & Q. R. R. Co. v. Hale, 83 Ill. 360; Hadley v. Caxendale, 26 Eng. L. & Eq. R. 398; Benton v. Fay, 64 Ill. 420; Griffin v. Colyer, 16 N. Y. 489; Long v. Conklin, 75 Ill. 32; Brigham v. Hawley, 17 Ill. 38; Haven v. Wakefield, 39 Ill. 516; McAfee v. Crafford, 13 Howard, 447; Burroughs v. Clancey, 53 Ill. 30; Phelan v. Andrews, 52 Ill. 486; Strawn v. Cogswell, 28 Ill. 457; Havana R. & E. R. R. Co. v. Walsh, 85 Ill. 59.

As to partnership: Irvin v. N. C. & St. L. R'y Co. 92 Ill. 103; Hefner v. Palmer, 67 Ill. 161.

Mr. JAMES SPRINGER, for appellees; that for the breach of contract appellants' remedy was to purchase brick in the market, and charge appellees the difference between the contract price and the market price, cited C. B. & Q. R. R. Co. v. Hale, 2 Bradwell, 151; Phillips, etc. v. Seymour, 1 Otto, 646; Bulkly v. U. S. 19 Wallace, 37; Miller v. Mariners' Church, 7 Greenl. 51; Chambers v. Ft. Bent Co. 14 Texas, 34; Peterson v. Whitney, 23 Barb. 24; Hubbard v. Weldom, 27 Vt. 65.

Where a verdict is in reasonable conformity with the evidence, it will not be disturbed: Wallace v. Wren, 32 Ill. 146; White v. Clayes, 32 Ill. 325; Umlauf v. Bassett, 38 Ill. 96; C. & R. I. R. R. Co. v. Coal and Iron Co. 36 Ill. 60; Tolman v. Race, 36 Ill. 472; C. & R. I. R. R. Co. v. Hutchins 34 Ill. 108; Schultz v. Lepage, 21 Ill. 160; Smith v. Schultz, 1 Scam. 490; Allen v. Smith, 2 Scam. 97; C. B. & Q. R. R. Co. v. Stumps, 69 Ill. 409.

Where evidence is conflicting, it is the province of the jury to weigh it, and their decision will not be disturbed unless there is manifest injustice: Edgmon v. Ashelby, 76 Ill. 161, 208; Clifford v. Luhring, 69 Ill. 401; Kirghtlinger v. Egan, 75 Ill. 141; Plummer v. Rigdon, 78 Ill. 222; Gilbert v. Bone, 79 Ill. 341.

As to partnership: Wheeler v. McEldowney, 60 Ill. 358; Poole v. Fisher, 62 Ill. 181.

WILSON, J.

As the judgment of the court below must be reversed on other grounds, and the cause be remanded for a new trial, we omit the expression of any opinion as to the sufficiency of the evidence to support the allegation of the partnership of the defendants, the burden of proving which was, under the sworn plea of the defendants, cast upon the plaintiffs.

Two other questions are presented for determination: first, do the facts proven, taken in connection with the evidence, offered by the defendants but rejected by the court, show a proper case for the application of the doctrine of recoupment of the special damages claimed, and secondly, did the acceptance of the brick by the defendants after the time for their delivery had passed, constitute a waiver of such special damages as the defendants would have been entitled to recoup in the absence of a waiver?

The general rule of damages in the purchase and sale of personal property, where the seller fails to deliver, is the difference between the contract price and the market price at the time and place of delivery. This rule is based on the principle that full indemnity is thereby offered to the buyer, as by going onto the market he may procure the commodity contracted for, charging the seller with the difference in price, if any.

But to this general rule there are various qualifications and exceptions, depending upon the facts of each particular case. Where a specific article is bought for a specific purpose, known to the vendor at the time of sale, and such article can not be had on the market, or has no ascertainable market value, the rule does not apply. In Sedgwick on the Measure of Damages, Vol. I, 558 and note, it is said: “A plaintiff can not recover for any consequences which would not follow, in the usual course of things, the seller's failure to make delivery, but he can sometimes recover more than the difference between the contract and market price.”

In Parsons v. Sutton, 66 N. Y., which was an action to recover for certain plate paper, which the seller had failed to deliver at the time agreed upon, the doctrine on this subject, as also the rule of pleading in such cases, is comprehensively stated thus: “The ordinary measure of damages is the difference between the contract and market price at the time and place of delivery. And this is the measure to be applied in a case where the pleading is in the ordinary form, simply...