Taylor v. Maguire

• Decision Date: 31 October 1848
• Parties: TAYLOR v. MAGUIRE.
• Court: Missouri Supreme Court

12 Mo. 313

TAYLOR

v.MAGUIRE.

Supreme Court of Missouri.

October Term, 1848.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

This was an action of assumpsit on the common counts brought by Maguire against Taylor. The defendant, Taylor, pleaded the general issue, upon which the cause was tried by a jury, who rendered a verdict for the plaintiff for $5,275, for which amount judgment was rendered. The defendant in the court below filed a motion for a new trial within the proper time, for the reason, as was alleged, that the verdict was contrary to law and the evidence, and because the court rejected competent evidence offered by defendant. The motion was overruled, and the defendant excepted and appealed to this court. The bill of exceptions shows that the plaintiff claims fifteen thousand dollars for work and labor done and materials furnished in building a steamboat hull for the defendant. The bill of particulars furnished bythe plaintiff, sets out in detail the materials and work for which the plaintiff claims, with the price of each article. The plaintiff then proved that he furnished the materials and performed the work as enumerated in his bill of particulars, and that the prices were reasonable, and that the hull was delivered to defendant on 12th April, 1847. That Taylor accepted the hull and made no objection to the quality of the work. That from the time of the delivering it was about six weeks or two months before the hull was completed as a steamboat, and ready to run. It was also proved that there was a written contract between Taylor and Maguire concerning the building of the hull, which contract was proved and read in evidence to the jury by defendant, after the plaintiff had closed his evidence. The contract is set out in the bill of exceptions, from which it appears that it was dated 8th September, 1846, and that Maguire undertook to build for Taylor a hull of specific dimensions; to furnish all the materials, and do all the work pertaining to the ship carpenter, except that Taylor was to furnish the “tie-bolts” and rudder-iron, and Maguire was to have the boat ready to receive the engines by the 1st of February, 1847. In consideration for which, Taylor agreed to pay Maguire nine thousand dollars in manner following, viz.: One thousand dollars in hand; one thousand dollars on 1st November, 1846; one thousand dollars on 1st December, 1846; one thousand dollars on 1st January, 1847, and five hundred dollars when the hull was completed. The balance was to be paid in the notes of Taylor, payable the first at four months from the completion of the hull; the second at six months from date; the third at nine months from date, and all to be dated at the time of the completion of the hull. At the foot of the contract and below the signatures, is a memorandum signed by Maguire, to the effect that if the notes to be given by Taylor, be not met at maturity, they were to be renewed, by adding interest. The plaintiff also gave evidence tending to show that after the delivering of the hull to Taylor on 12th April, 1847, there was no work to be done by Maguire, except to put on the rudder, and that some delay occurred in doing this for want of the rudder-irons, which were to be furnished by Taylor, but that this was done, and the rudder put on before, or as soon as Taylor had put on the cabin, and had the boat ready to run. Plaintiff proved also, that he commenced work, getting out timber, &c., for the hull, about 1st October, 1846. That in the progress of the work Taylor several times objected to the lumber that was put into the boat, which the witness thought was good lumber, but that Taylor required it to be taken out, which was done, and it was replaced by other planks. That this caused some little delay in completing the work. That after the 1st February, 1847, Taylor was about the boat yard, and gave directions, as before, concerning the building of the hull. That before and after 1st February, Taylor was all the time hurrying those employed on the boat, saying he was afraid he should lose the season run, if he did not soon get the hull. He also gave evidence tending to show that the work had been somewhat delayed by the severity of the winter, and the difficulty of obtaining lumber. This was all the evidence on the part of the plaintiff. The defendant, after reading in evidence the written contract before referred to, offered to prove that he performed all that was required in the contract to be done on his part, and that by the failure of the plaintiff to build and deliver the hull at the time specified in the contract, the defendant lost the use of the boat for the space of two months, and that the boat could have been chartered to other persons for the period lost, for a sum exceeding the whole amount of the contract price remaining unpaid; to the introduction of which proof the plaintiff objected, and the court refused to allow the proof to be made, to which the defendant excepted at the time, and has appealed to this court, and assigns for error the refusal of the court to grant him a new trial, and the exclusion of the testimony offered by him as above.

CROCKETT & BRIGGS, for Appellant.

1st. The defendant in the court below had a right to recoup his damages sustained by Maguire's failure to complete the hull according to contract. Patterson v. Price, 3 Hill, 171; Reab v McAllister, 8 Wend. 109, 483; Barber v. Rose, 5 Hill, 76; Van Eppes v. Harrison, 5 Hill, 63; Still v. Hall, 20 Wend. 51; Ives, &c., v. Van Eppes, 22 Wend. 155; Laduc v. Seymour, 24 Wend. 60; Silsby v. Patterson, 14 Wend. 257; Beeker v. Trooman, 13 Johns. 302; King & Mead v. Paddock, 18 Johns. 140; Sedwick on Measure of Damages, 457, et seq. 2nd. That the damages offered to be proved by the defendant, and the proof of which was rejected by the court, was not speculative, but resulted directly and proximately from the breach of contract on the part of Maguire. Taylor lost the use of the boat for more than two months, during the best part of the season, and offered to show that such use would have been worth more than the balance due for the purchase-money. Such proof was competent. 3rd. That although the general rule is in actions for a breach of contract for the sale and delivery of chattels, that the criterion of damages is the difference in value of the articles on the day of actual delivery (where they have been received by the vendee), and the value on the day when they ought to have been delivered. Yet this rule applies only where the price is to be paid on the delivery; not where the price is paid in advance, as in this case--nor where the contract is for the sale and delivery of articles for the use and accommodation of the vendee, and not for purposes of trade and commerce. 2 Burr, 1005, 1010; 2 East, 211; 2 Cowen, 82; 8 Wend. 129; 24 Wend. 322; Clark v. Pinney, 7 Cowen, 681; Sedgwick on Rule of Damages, 112, 260, 276; 3 Wheat. 200; 2 Cowen, 485. 4th. That the case at bar is not, in its proper sense, a contract for the sale and delivery of a chattel for the purpose of trade and commerce, but was an undertaking on the part of Maguire to perform specific work within a given time, Taylor agreeing to furnish a part of the materials to be used in the work, and when completed, was to be used, as shown by the proof, not as an article to be sold, but to be used by Taylor, and therefore the rule governing the sale of chattels to be delivered at a given day for the purpose of trade, barter, and sale, is not applicable, but if they were applicable, Taylor having paid a part of the purchase-money in advance, is not restricted in his damages to the rule applicable to cases where the purchase-money is to be paid on the completion of the contract. 5th. That from the facts as proved, it may fairly be considered to have been in the contemplation of the parties at the date of the contract, that Maguire should be held liable for all losses arising from his failure to complete the hull at the stipulated time, and especially “such profits and advantages as are the immediate fruits of the contract. These are a part and parcel of the contract itself, entering into and constituting a portion of its very elements--something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation. Masterson v. Mayor of Brooklyn, 7 Hill, 65; Sedgwick on Rule of Damages, 81, 84. 6th. That according to the contract given in evidence, the balance of the purchasemoney was to be paid by Taylor in his notes, at four, six and nine months from the completion of the hull, and then to be renewed at his option, including interest. This suit was commenced on 29th May, and before the expiration of the stipulated credit. This cannot be done in a suit on the common counts. The only recovery in such cases, is by suit on the contract for failure to give the notes. But after the expiration of the credit, suit may be maintained on the common counts. In this case, suit was brought before the expiration of the credit, and therefore the verdict for the whole balance of the purchase-money, was contrary to law and the evidence, and a new trial ought to have been granted. Sedgwick on Rule of Damages, 285; Ginnard v. Daggart, 5 Serg. & Rawle, 19; Messer v. Price, 4 East, 147; Dutton v. Solomonson, 3 Bos. & Pul. 582; Hoskins v. Duperoy, 9 East, 498; Hutchinson v. Read, 3 Camp. 329; Hanna v. Mills, 21 Wend. 90.

TODD & KRUM, for Appellee.

1st. That the court did right in refusing to suffer the appellant to give the evidence by him offered, because what he offered to prove was not a legal claim in his behalf against appellee either as a right of action, or in mere mitigation of appellee's claim. 1 Gall. R. 314, 325, denies profits of a voyage broken up by...