The St. Louis & San Francisco Railroad Company v. Gaba
| Decision Date | 03 July 1908 |
| Docket Number | 15,554 |
| Citation | 97 P. 435,78 Kan. 432 |
| Court | Kansas Supreme Court |
| Parties | THE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. U. T. GABA |
Decided July, 1908.
Error from Cherokee district court; CORB A. MCNEILL, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. EVIDENCE--Incompetent Testimony Introduced by One Party--Repetition by the Other Party. If a party by cross-examination elicits and restores to the record incompetent testimony which, upon his motion, had been stricken out, he is not prejudiced by the repetition of such testimony on redirect examination.
2. CONTRACTS--Liquidated Damages. The extent of a possible future loss to be paid in the event of a breach of contract may be agreed upon in advance, where there is difficulty in determining the extent of the loss and the resulting damages are uncertain. In such a case the amount so fixed, if reasonable, will be allowed when the default occurs.
3. CONTRACTS--Same. This principle is often applied to contracts for building, and when the sum named is not excessive it is generally held to be liquidated damages and not a penalty.
4. CONTRACTS--Construction. The use of the words "forfeiture," "penalty" and "liquidated damages" in such contracts is not controlling, although due weight should be given to such expressions, in connection with other parts of the agreement the subject-matter, and other facts and circumstances.
5. CONTRACTS--Transportation--Notice to Carrier of Consequences of Delay--Damages. Where materials for a building had been delivered to a carrier for transportation, which was unreasonably delayed, and the consignor paid to the contractor, who was the consignee, the amount previously agreed upon as damages for the delay in the completion of such building caused by failure to receive the materials in due time, the carrier will be held liable for the amount so paid, in the absence of evidence of bad faith in making the settlement or that the amount paid was excessive, if properly notified at the time of shipment of the use intended and the consequences of delay.
W. F. Evans, R. R. Vermilion, and H C. Sluss, for plaintiff in error.
E. B. Morgan, for defendant in error.
The plaintiff, U. T. Gaba, delivered to the defendant railroad company, at Baxter Springs, a lot of porch columns and composition caps consigned to a contractor at Oklahoma City. The agent of the company was informed that the materials were to be furnished by Mr. Gaba for use in a building which was being constructed under a time contract, with a penalty for delay, and prompt shipment was promised by the agent. The columns were sent forward at once, and were received by the contractor within three days. The caps, although included in the same bill of lading, were not delivered in Oklahoma City until thirty-one days afterward, having by mistake been taken to Texas. The company was promptly notified of the shortage, and the plaintiff made diligent efforts to find the property, at an expense to him of $ 26. In making settlement with the contractor the owner deducted over $ 300 as damages for delay beyond the time agreed upon for completion of the building, caused by this delay in the transportation of the caps; and the contractor deducted $ 300 from the bill of the plaintiff, the subcontractor, in accordance with the agreement of the latter, in which he stipulated to pay $ 10 per day for each day's delay in the construction of the building caused by his failure to deliver the caps promptly. The plaintiff sued to recover his damages from the company, and upon a trial without a jury recovered a judgment for $ 300. The company alleges error in the rulings upon evidence, and in the measure of damages allowed.
After the plaintiff had testified to his agreement to pay $ 10 per day for any delay in constructing the building caused by his failure to deliver the materials it was shown that the agreement was in writing, in the possession of the contractor in Oklahoma, and the defendant moved to strike out the parol testimony of its contents. This motion was allowed, but the defendant by cross-examination of the witness elicited the same testimony, as the following excerpt will show:
After this testimony had been given the plaintiff, on redirect examination, was permitted over the defendant's objection to testify as follows:
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...determining the extent of the loss and the resulting damages are uncertain, if the amount fixed is reasonable." Railroad Co. v. Gaba, 78 Kan. 432, 435-36, 97 Pac. 435 (1908). Beck v. Megli, 153 Kan. 721, 726, 114 P.2d 305 (1941), sets forth in greater detail the rules for determining whethe......
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