Trego v. Arave

• Decision Date: 03 June 1911
• Citation: 116 P. 119,20 Idaho 38
• Parties: WILLET D. TREGO, Appellant, v. WILLIAM ARAVE, Respondent
• Court: Idaho Supreme Court

116 P. 119

20 Idaho 38

WILLET D. TREGO, Appellant, v. WILLIAM ARAVE, Respondent

Supreme Court of Idaho

June 3, 1911

SALE OF HAY-CONTRACT FOR-VIOLATION OF-KIND AND QUALITY-SUFFICIENCY OF EVIDENCE - PROFITS - ELEMENT OF DAMAGES-ADMISSION OF EVIDENCE-SAMPLE OF HAY AS EXHIBIT.

(Syllabus by the court.)

1. Where a contract was made for the sale of 300 tons of "good merchantable" hay to be baled and shipped the words "good merchantable" are descriptive of the quality of the hay required by the contract, and means such hay as is vendible on the market, or salable on the market, at the ordinary price on such market.

2. Where hay is purchased to be sold on open market and the purchaser had contracted to sell the same for a certain price on said market, and the person from whom he purchased it failed to comply with his part of the contract in regard to the quality of the hay, it was error for the court to reject evidence tending to prove the reasonable profits that would have been made by the purchaser had the seller delivered the hay in accordance with the contract, as such profit is an element of damage that may be recovered in an action brought for that purpose.

3. If a purchaser of hay makes a contract for the resale of such hay and discloses that fact to his vendor, who undertakes to furnish the hay and deliver it at a specified time and place and his vendor fails to deliver the hay, he will be liable for damages on the basis of the reasonable profits the buyer would have realized from a resale of the hay.

4. On the trial of an issue as to whether the hay alleged to have been sold was good merchantable hay as provided by the contract of sale, it was error to admit as an exhibit a bundle of such hay for the inspection of the jury as the jurors had not qualified on the question of whether they knew what good merchantable hay was in the market where this hay was sold; and especially is that true in this case as the sample introduced was not proven to be a fair sample of the hay alleged to have been sold.

5. The merchantable quality of said hay should have been determined or established by the evidence of experts or by men who knew what merchantable hay was in the markets where this hay was sold, and who had inspected said hay or an average sample of it.

APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. Jas. M. Stevens, Judge.

Action to recover damages for breach of contract for the sale of hay. Judgment for defendant. Reversed.

Verdict of the jury set aside and a new trial granted. Costs awarded to the appellant.

Hansbrough & Gagon, for Appellant.

Merchantable means fit for sale; vendible in the market; of a quality such as will bring the ordinary market price. (Black's Law Dictionary, p. 768; Pacific Coast Elevator Co. v. Bravinder, 14 Wash. 315, 44 P. 544.)

In this case the purchase price having been paid, the burden was upon the defendant to prove that he tendered the plaintiff good merchantable hay of the kind and quality sold. (Bates v. Lyman, 35 Kan. 634, 12 P. 35; Kelly v. Pierce, 16 N.D. 234, 112 N.W. 995, 12 L. R. A., N. S., 180.)

If plaintiff can show the profits he claims were reasonably certain to be realized by him if the contract had been fulfilled, and also that the defendant was at fault for not fulfilling same, he may recover the same. (1 Sutherland on Damages, 3d ed., sec. 63; Schumaker v. Heinemann, 99 Wis. 251, 74 N.W. 785; Barrett v. Grand Rapids Veneer Works, 110 Mich. 6, 67 N.W. 976.)

If the buyer has in advance made a contract for the resale and discloses that fact to his vendor, who undertakes to furnish the commodity and deliver it at a specified time and place, arranged with reference to enabling the buyer to fulfill his contract for resale, and the vendor fails to deliver the property, he will be liable to damages on the basis of the profits the buyer would realize upon his contract for such sale. (3 Sutherland on Damages, 3d ed., p. 1932; Bluegrass Cordage Co. v. Luthy, 98 Ky. 583, 33 S.W. 835; Wakeman v. Wheeler Co., 101 N.Y. 205, 54 Am. Rep. 676, 4 N.E. 264; Liggett Co. v. Mich. B. Co., 106 Mich. 445, 64 N.W. 466; Jordan v. Patterson, 67 Conn. 473, 35 A. 521.)

The question as to whether the hay in question which was tendered under the contract was "merchantable" as stipulated therein is to be determined by experts and not by an inspection by the jury. (Pacific Coast Elevator Co. v. Bravinder, 14 Wash. 315, 44 P. 544.)

St. Clair & St. Clair, for Respondent.

In considering the question of merchantable hay, it must be borne in mind that merchantable hay is not necessarily the best in the market, nor necessarily the second best; that each case must be governed by its own facts and circumstances, and that it must be at least of medium quality and goodness, or of fair average quality, according to kind, free from remarkable defects and as such salable in the market for the ordinary price. (Mechem on Sales, secs. 1340, 1341; 5 Words and Phrases, 4489, tit. "Merchantable.")

SULLIVAN, J. Ailshie, J., concurs.

OPINION

SULLIVAN, J.

This action was brought to recover damages because of an alleged breach of a contract for the delivery of 300 tons of good merchantable alfalfa hay. The cause was tried by the court with a jury and a verdict was rendered in favor of the defendant, and this appeal is from the judgment entered on said verdict and from an order denying a new trial.

Many errors are assigned in regard to the sufficiency of the evidence and the admission and rejection of certain evidence offered on the trial. The alleged errors from one to eight, inclusive, relating to the insufficiency of the evidence to justify the verdict, are discussed by appellant under one head, and it is first contended by counsel for appellant that the main question to be determined in this case is whether or not the hay in question was of the kind and quality sold, plaintiff contending that it was not of the kind and quality sold and defendant contending that it was. The jury found in favor of the defendant's contention. The following is a copy of the contract entered into for the sale of said hay:

"$ 1,800.00. Blackfoot, Idaho, December 4, 1906.

"This certifies that I hereby sell to W. D. Trego, of Blackfoot, Idaho, 300 tons of good merchantable alfalfa hay to be baled by W. D. Trego, to be delivered at O. B. cars Shelley, on or before the 1st day of March, 1907. And I hereby acknowledge the receipt of Eighteen Hundred Dollars as full payment for the same.

(Signed) "WILLIAM ARAVE."

The main question arises over the quality of the hay offered by the respondent to the appellant in compliance with his part of said contract, and it is contended that the hay offered was not "good merchantable" hay within the meaning of that term as used in said contract. It is also contended that the evidence is insufficient to justify the verdict, and that there is no substantial evidence to support it.

Since the court has concluded that the judgment must be reversed and a new trial granted upon errors of law occurring at the trial, we shall not dispose of the assignments of error, one to eight, inclusive, going to the sufficiency of the evidence to sustain the verdict. We have, however, carefully considered the evidence, and would say that it is very doubtful whether there is substantial evidence in the record to support the verdict, but we do not pass upon that question.

The errors assigned from nine to twenty-nine, inclusive, refer to the admission and rejection of evidence by the court over the objection of appellant. The evidence tends to show that the appellant had the hay in question sold in Salt Lake City, and it is contended that the appellant had the right to prove to the jury the price at which he had sold it to show the profit he would have made. It is a rule of law that the liability for the profits which would have resulted from the performance of a contract is coextensive with the right to contract, and if plaintiff can show the profits he claims were reasonably certain to be realized by him if the contract had been fulfilled, and also that the defendant was at fault for not fulfilling the same, he may recover such reasonable profits. (1 Sutherland on Damages, 3d ed., sec. 63; Schumaker v. Heinemann, 99 Wis. 251, 74 N.W. 785; Barrett v. Grand Rapids Veneer Works, 110 Mich. 6, 67 N.W. 976.) The court erred in rejecting any testimony offered tending to show that the hay had been resold in Salt Lake, the price for which it was sold, and the profits that would have been received by the appellant had the contract been fulfilled, and that defendant's failure to furnish such hay as he had sold to appellant resulted in the loss of such prospective profits to appellant.

It is contended by appellant that the court erred in overruling plaintiff's objection to the following question propounded to the appellant by the defendant on cross-examination, designated as the eleventh assignment of error:

Q. "Did Mr. Arave tell you in that conversation that there...