Sundt v. Tobin Quarries, Inc.

• Decision Date: 20 December 1946
• Docket Number: 4939.
• Citation: 175 P.2d 684,50 N.M. 254,1946 -NMSC- 038
• Parties: SUNDT v. TOBIN QUARRIES, Inc.
• Court: New Mexico Supreme Court

175 P.2d 684

50 N.M. 254, 1946 -NMSC- 038

SUNDT v. TOBIN QUARRIES, Inc.

No. 4939.

Supreme Court of New Mexico

December 20, 1946

Appeal from District Court, Bernalillo County; Henry G. Coors Judge.

Action by J. S. Sundt, doing business as M. M. Sundt Construction Company, against Tobin Quarries, Inc., for damages for defendant's breach of contract and for other relief. Judgment for plaintiff, and defendant appeals.

Affirmed.

In buyer's action for breach of contract to sell and deliver sand, where there was no market within state for sand, price on market at Amarillo, Texas, which was nearest market, with freight adjustment, was a competent factor in determining value.

Simms, Modrall, Seymour & Simms, Irwin S. Moise and Joseph T. Cole, Jr., all of Albuquerque, and Roy W. Crimm, of Kansas City, Mo., for appellant.

Quincy D. Adams and Edward P. Chase, both of Albuquerque, and William W. Gilbert, of Santa Fe, for appellee.

BRICE, Justice.

The plaintiff (appellee) sued the defendant (appellant), to recover damages alleged to have been sustained because of defendant's breach of a contract, by the terms of which the defendant agreed to deliver to plaintiff approximately 10,000 cubic yards of screened sand, to be used by plaintiff in the preparation of sealing material for the resurfacing of two portions of state highways; also to recover for the use of certain equipment used by defendant, and the value of labor performed for defendant by employees of plaintiff.

The facts found by the trial court necessary to a decision are substantially as follows:

On June 23, 1944, the plaintiff was awarded by the New Mexico State Highway Commission contracts for resurfacing two sections of highways in New Mexico, to be completed according to specifications within sixty 'weather working days.' A part of the material required for the resurfacing projects was approximately 10,000 cu. yds. of screened sand. On July 5, 1944 the State Highway Commission notified the plaintiff to commence the work of resurfacing under his contracts, and in compliance therewith he commenced work on July 14, 1944. On July 24, 1944 he ordered in writing from the defendant 8913 cu. yds. of screened sand to be used on the road projects, which order the defendant accepted, and thereupon agreed to deliver the sand to plaintiff, F. O. B. Logan, New Mexico, for $1.25 per cu. yd.

The defendant was informed 'at or prior to the time the orders were placed' that the plaintiff was under contract to complete the road projects within sixty 'weather working days.' Although defendant may not have known the exact time limit on the contracts, it did know that the time for completing the resurfacing projects was short, and was approximately the time stated in the contracts; that is 'sixty weather working days.'

The plaintiff obtained the screened sand required for the resurfacing of the two highway projects mentioned, by other means and from other sources than from the defendant (except 938.9 cu. yds. furnished by defendant under the contract) as a cost in excess of the price at which defendant had agreed to furnish it. Upon being required to start the work of resurfacing under his contract, the plaintiff, on his own account and with his own labor and equipment, began the production of screened sand. By July 28, 1944, he had produced 660 cu. yds. In the latter part of August, and until September 6, 1944, he produced 976 cu. yds. Between September 8 and September 22, 1944, he produced 1492 cu. yds. Between September 1 and September 15, 1944 (at another mine) he produced 1443 cu. yds. The remainder of the screened sand necessary for completing plaintiff's resurfacing contracts was bought on the market from dealers.

Commencing September 15, 1944, plaintiff could have obtained the full amount of screened sand from commercial producers in Amarillo, Texas at $1.15 per ton F. O. B. Amarillo. None of the screened sand was used in the highway resurfacing in question until October 7, 1944.

The defendant is indebted to the plaintiff in the sum of $2996.04 for the use of men and equipment in the production of screened sand in an attempt to carry out his agreement with plaintiff.

The following findings of the Court are copied in full, as it is asserted by defendant that they are not supported by substantial evidence, to-wit:

'IV. That although plaintiff was ready, willing and able, at all times while said highway projects were in course of construction, that is, from about July 24, 1944 to about November 21, 1944, to accept delivery of said sealing material and pay for same upon delivery as agreed, defendant wholly failed to deliver and of said sealing material ordered except 938.9 cubic yards thereof.'

'XX. That plaintiff would have completed the two highway projects, for which it was under contract with the Highway Department of New Mexico, on or prior to October 12, 1944, had it not been for defendant's breach of its contract with plaintiff.'

'XXI. That the delay in completion of the two highway projects by plaintiff, caused by defendant's breach of contract, damaged plaintiff.'

'XXII. That the delay in completion of the two highway projects by plaintiff, caused by defendant's breach of contract, damaged plaintiff to the extent of $1000.00.'

'XXIV. That the cost of the 1443 cubic yards of material produced by plaintiff between September 1, 1944 and September 15, 1944 was in excess of the contract price of the material to be furnished by defendant, considering freight.'

'XXVI. That the excess of the market price of sealing material, ordered by plaintiff from defendant but not delivered, over the contract price, considering freight, amounts of $13,678.89.'

The defendant is entitled to a credit of $1173.63 for the 938.9 cubic yards of sand delivered to, and accepted by, the plaintiff. That there is a balance due the plaintiff by the defendant of $16,501.30, for which he is entitled to judgment.

The defendant asserts that the trial court erred in refusing to make its requested findings of fact, numbers 12, 13, 15, 18, 19, 20, 21, and 24. Assuming that the facts therein stated were so conclusively proven that this court should accept them as true, we find that all except request No. 18 were statements of evidentiary facts. The trial court is required by the rule to make findings of ultimate facts only. We do not find it necessary to consider these requests specifically, but see Christmas v. Cowden, 44 N.M. 517, 105 P.2d 484, 487, where we stated that 'The trial court is called upon to make findings of the ultimate facts only.' See also Paulos v. Janetakos, 46 N.M. 390, 129 P.2d 636, 142 A.L.R. 1237.

Requested Finding of Fact No. 18 is as follows: 'That on the evening of October 3, 1944, Gene Sundt called Chet Roweth by telephone and made certain agreements substantially as set forth in plaintiff's Exhibit 'O."

A finding of fact must be complete within itself, without reference to the testimony. If it was the intention of defendant by this request to propose a finding that would amount to a modification of the original contract, as we assume from defendant's argument that it was, its requested finding should have stated that the contract had been modified and in what particular.

On October 4, 1944 plaintiff wrote defendant a letter in which he stated that the parties had a telephone conversation and 'from this conversation it is our understanding that:

1. In spite of the fact that you now face a probable loss in this venture you are willing to go on through with these orders, and will permit the operation of the sealing material setup to be carried on simultaneously with the ballast operation so that there will be no further shut downs in sealing material production.

2. We will submit to Frank May a statement of back-charges through September 30th, and thereafter at the conclusion of each calendar week. These charges will be checked by May and okayed if found to be in order.

3. Back-charges for use of our equipment shall be based on less than OPA Maximum rentals and shall be charged only for time operated. If Tobin Quarries do not feel that they can pay the rental charge on the Portable Screening Plant, we will donate the use of this plant at no charge. A list of rental rates for various pieces of equipment which are or might be required is attached hereto.

4. When the necessary quantity of material has been produced we will not make a drayage charge for removing our equipment except that equipment which, due to weight, cannot be transported across the Highway bridge at Logan, shall be delivered to us at Tucumcari at no cost to us. (Railroad delivered to Pit on deadhead freight). The boiler which belongs to Nate Skousen in Albuquerque, N.M. shall be returned to him at Tobin Quarries expense.'

We will assume as a fact that the parties had the 'understanding' set out in the letter mentioned. In regard to this 'understanding' defendant states:

'Under the original orders as placed by plaintiff with the defendant, there was an obligation on the part of the defendant to furnish 8,913 cubic yards of material, and on the part of the plaintiff to receive and pay for the same. By the terms of the letter of October 4, the defendant was to furnish a lesser quantity over a different period of time using men and a separate screening plant furnished by plaintiff at defendant's expense. * * * After October 4, when the plaintiff had waived the time elements in the original contract, the plaintiff states in its letter of that date that he has 'another setup running' and that this results in 'somewhat reduced' quantities required from the defendant and that nevertheless the defendant has agreed to go ahead. It should be clear that after accepting these new terms...