Sullivan v. Mcmillan

• Decision Date: 16 December 1890
• Citation: 8 So. 450,26 Fla. 543
• Parties: SULLIVAN et al. v. McMILLAN et al.
• Court: Florida Supreme Court

8 So. 450

26 Fla. 543

SULLIVAN et al. v. McMILLAN et al.

Florida Supreme Court

December 16, 1890

Appeal from circuit court, Escambia county; J. F. McCLELLAN, Judge.

Syllabus by the Court

SYLLABUS

1. Where the time for the performance of an executory contract has arrived, or where the contract is being performed, and one of the parties notifies the other unequivocally that he will not perform or further perform his part, or will not accept performance by the other, the latter may treat the contract as put to an end or entirely broken by the former and, if ready and willing to perform his part, sue him at once for an entire breach of the contract, without waiting for the expiration of the time it would take to complete the contract, and can recover as damages the same profits that he would have earned had he entirely performed the contract.

2. Where a party a contract gives the other unequivocal notification by letter that he will not accept further performance of the contract, and then writes another letter to him consenting to accept, without raising the question of his obligation to do so, a specified part perform ance, of which he has been notified since writing the former letter but expressly claiming the right to raise the question of his obligation to accept it, and stating that in accepting it he must not be understood as waiving the position taken in his first letter, the acceptance of such part performance is not an abandonment of the breach of contract committed by the first letter, except to the extent of such part performance and no further offer of performance is necessary to authorize the latter party to treat the contract as entirely broken in so far as it remains unperformed, and sue for such breach.

3. Where an executor and executrix are sued upon a contract which upon its face is simply the individual contract of their testator, it being declared on as such, and the pleadings not setting up that it is the contract of the testator and others as partners, the executor and executrix cannot contend that the evidence shows that it is the contract of an alleged partnership; and particularly is this so where a plea setting up such defense has been withdrawn.

4. Co-executors, however numerous, are in law but one person and the acts of any one of them in respect to the administration of the effects is in law the act of all; and where an act done by a person who is sole executor will bind him as such, it will bind both him and his co-executors, if such relation exists.

5. Plaintiffs, one of whom had been told by M. H. S. that he would receive no more logs, wrote to defendants, the executor and executrix of D. F. S., referring to the conversation, and asking to be informed whether or not they would receive any more logs under the contract between plaintiffs and the testator. M. H. S. replied stating that, as the letter related to business of the house of D. F. S., of which he was surviving partner, he would reply in that character, and this and the subsequent letters from him were signed in such character, and plaintiffs addressed him as such in their subsequent letters. M. H. S., in his letters, notified plaintiffs that he would receive no more logs under the contract, because it had been fully performed by plaintiffs and the testator and his representatives. The executor and executrix, being sued as such for an entire breach of the contract as a contract between them and the testator, do not deny in their pleadings that it is the contract of their testator, which upon its face it clearly is. Held, that the letters constituted in law a refusal by the executor and executrix to further perform the contract, and an entire breach of the contract, and not simply a refusal by M. H. S as surviving partner of the alleged firm.

6. Admissions made by a person against his interest are admissible in evidence, and the entire admission, with all its parts, though they may limit, modify, or destroy its effect, should be let in, subject to the rule as to credibility; but assertions made by one in his own interests, not being a part of an admission, are not admissible as evidence of themselves in favor of the party making them.

7. Though declarations or assertions made by one party in his interest in the presence of another, and against the interest of the latter, are not received as evidence in themselves, they are admissible for the purpose of understanding what reply the party to be affected by them should make. If he has been silent when he ought to have denied, the presumption of acquiescence in them arises.

8. The acquiescence inforable from silence when words are spoken to a person's face is not inferred from silence as to written communications. The mere omission to answer a letter is not evidence of an admission or acquiescence in the truth of its statements, and does not render the latter admissible as evidence of the truth of such statements as against the party receiving it. Where, however, there has been a correspondence or exchange of letters, and there is an omission upon the part of one of the parties to reply to statements about which he has knowledge, and which, if not true, he would naturally deny, contained in a letter or letters of the other party which have been replied to, or where he omits to reply to a certain letter or letters of the correspondence containing such statements, such omissions are evidence to be considered by the jury in connection with the other circumstances of the case, as tending to show the truth of the statements not replied to. Such evidence is of lighter character than silence is when the statements are made to the face of a party, and an omission to reply to an entire letters of a correspondence is lighter evidence than an omission to reply to a statement of the kind in a letter otherwise replied to.

9. Plaintiffs wrote to defendants inquiring if they would receive logs in compliance with the contract between plaintiffs and defendants' testator, and indicating their understanding to be that the contract was still unfulfilled. One of the defendants replied suggesting that the contract may have been fulfilled, and the necessity for an investigation, and that it would be promptly made. Plaintiffs then wrote him repudiating the suggestion, and positively asserting that the contract was in a large part unexecuted. On the same day defendant wrote plaintiff stating that he had caused the examination to be made, and had found that plaintiffs had not only cut over all the lands embraced in the contract, but others not embraced in it, and that the logs cut on the latter lands, which logs he avers plaintiffs had no right to deliver under the contract, were largely more than an offset for any left standing on the contract lands, and announcing, in accordance with his former letter, that he considered the contract fully executed. On a subsequent day the defendant, he having then received plaintiffs' second letter, wrote a third letter, making, in effect, his second letter a reply to plaintiffs' second, except as to one point, not material to be noticed here. These letters were put in evidence by plaintiffs, who, after the receipt of defendant's last letter, moved off their teams, and ceased to perform the contract, and sued defendants for an entire breach of it. Held, (1) the statements of the second and third letters of defendants are not admissions against their interests, but assertions or declarations in their interest; (2) that the jury were not wrong in finding that the plaintiffs did not acquiesce in the statements or conclusion of defendants' second and third letters.

10. An erroneous charge is not ground for setting aside a verdict which is in accordance with the law and the evidence.

11. The fact that one party to a suit introduces letters in evidence does not of itself make their contents evidence against him.

12. Where, in a correspondence between parties, one of them has controverted the proposition previously suggested and subsequently asserted by the other, but has failed to reply to subsequent letters of the latter party asserting such proposition, and making allegations of fact as the ground of his conclusion, it is error to charge the jury that, if there are any statements in the letters of the latter party against the former's interest that are not replied to or denied, they are to be considered as admitted by the former party.

13. Where, pending the performance of an executory contract, there is an entire breach of it by one party, for whom the work is to be done, and the other party thereupon sues him, the measure of damages is the difference between what it would have cost to perform the contract, and the contract price, had it been entirely executed. In estimating the cost of performance, the price of labor and materials, etc., at the time of the breach will govern, without regard to subsequent fluctuations. The elements of cost should be ascertained from reliable sources, from practical men having experience in matters of the same kind, and not from loose and speculative opinions. The less time the party who is to do the work is engaged in consequence of the breach, and the consequent release from care, trouble, risk, and responsibility, and all necessary items of expense, including also those which, though contingent, are almost inseparable from the performance of the contract, as well as the value of the use of property necessarily employed in performing the contract, and all outlays of capital for labor, material, etc., should be included in the estimate of the cost.

14. A contract for the cutting and delivery of all logs of not less than specified minimum dimensions on designated lands provided that 100 logs should be delivered daily by one of the parties,...