Trigg v. Clay

• Decision Date: 23 July 1891
• Citation: Trigg v. Clay, 88 Va. 330, 13 S. E. 434, 29 Am. St. Rep. 723 (1891)
• Parties: Trigg et al. v. Clay et al.
• Court: Virginia Supreme Court

13 S.E. 434

88 Va. 330

Trigg et al.

v.Clay et al.

Supreme Court of Appeals of Virginia.

July 23, 1891.

Breach op Contract—Promts as Damages.

"Where lumber dealers purchase and pay for lumber to be delivered at a future time, and then resell it, the measure of damages for breach of the contract and failure to deliver is, in the absence of a market at or near the pi ace of delivery, the amount paid, together with the profits which would have arisen from the resale. Lewis, P., and Hinton, J., dissenting.

Danl. Trigg, for appellants.

Holdway & Ewing and J. J. A. Powell, for appellees.

Lacy, J. This is an appeal from a decree of the circuit court of Scott county rendered on the 27th day of March, 1890. The suit is a foreign attachment in equity, brought to attach the property situated within the jurisdiction of the court belonging to the non-resident defendants, and subject the same to the satisfaction of the debt of the plaintiffs. The case is briefly as follows. The appellants, a firm of lumber merchants resident at Abingdon, in Virginia, made a contract by which they agreed to buy, at a stated price, lumber of agreed dimensions from the appellees, a firm of lumber getters, resident at Rogersville, in the state of Tennessee; the lumber to be delivered at Clinchport, in Scott county, in Virginia, from 500, 000 feet to 700, 000 feet thereof; and the plaintiffs agreed to accept the drafts of the said appellees to the amount of $3,000. And on the 28th day of November, 1888, the date of the contract, the appellee H. B. Clay, Jr., of the said firm, represented to the appellants that 300, 000 to 400, 000 feet was already cut and dry or drying; and that the residue, necessary to compensate for the $3,000 in drafts to be accepted at 60 days, should be delivered at Clinchport at the maturity of the drafts. The drafts were all made in the first week in December, 1888, a few days after the contract was made, which was on the 28th day of November, as has been stated. The lumber was not delivered, — not a foot of it, —and the drafts were neglected and allowed to fall upon the hands of the plaintiffs, when the lumber had not yet been delivered, and the drafts had been paid. So the plaintiffs, as had been agreed between them in case the said contingency should arise that the drafts should have to be paid before the lumber in sufficient quantity had arrived, drafted back upon the defendants for the money thus paid out; but this action was treated with derision by the appellee, and the draft dishonored. Upon the hearing, the circuit court decreed in favor of the plaintiffs for the $3,000 paid on the draft and the costs of protest, etc., and referred it to a commission to ascertain what damages the plaintiffs had sustained. It was proved that the defendants had absolutely refused to fulfill the contract upon the ground that the lumber had been priced too low by them, and also refused to refund the money paid them under the contract. The plaintiffs proved that they were lumber merchants, and, as was known to the defendants, purchased the lumber for sale; and they proved that they had actually placed this lumber to their customers at a profit which amounted to $1,000, but which they were made to lose by the wrongful act and fraudulent conduct of the defendants; and the commissioner reported that the said plaintiffs were entitled to this sum of actual damages incurred by them, estimating the profits on the maximum amount of the lumber to be delivered under the contract. But the defennants excepted to this report, "because the damage allowed is excessive, and not supported by law; because the commissioner had based hie damages on supposed profits, instead of the market value of the lumber at the places of delivery." The circuit court by its decree of March 27, 1890, sustained these exceptions, and held that the plaintiffs were entitled to no specific damages for the non-performance of the contract set out in the plaintiffs' bill, and rested the matter where it had been placed by the former decree, which decreed in favor of the plaintiffs for the amount paid on the said drafts. From this decree the appeal is here. The idea of the circuit court was that the general rule applied which fixed the difference between the market price at the place of delivery and the contract price agreed to be paid. Upon the principle that the buyer could supply himself in the market overt, and when he had been compensated for the excess in the cost, over and above what his cost would have been under the contract, he had nothing more to complain of. But this case does not come within that principle, (1) because there is no market at that place from which, or in which, the plaintiffs could supply their need; (2) because there is no other market practically near enough to purchase the lumber and add transportation to the market price; (3) because the plaintiffs, relying on the promises and good faith of their bargainers, as they had a right to do, when they had themselves fully complied on their part by paying the purchase money therefor, had contracted to sell this lumber at a profit, which profit is the basis on which the commissioner assessed his damages.

In a case like this, with such circumstances as we have here, the case where there had been a contract to resell them at an agreed price, and when there is no market to afford a surer test, the price at which they were bargained to a purchaser affords the best and indeed very satisfactory evi-dence of their value. This was a purchase in that market, and there was no more for sale. In a case of such actual sale, why should the court go into conjecture as to what the goods were there worth? And again, if lumber could have been purchased end brought there at a lower price, there is not only no proof of it, but we have satisfactory proof to the contrary, because the defendants had the lumber, and were by their solemn contract under the highest obligations to deliver it; to say nothing of the requirement of common honesty, when they had agreed to do it, and had collected the purchase price. And yet they preferred to break their contract, and dishonored their bank obligation, rather than deliver this lumber at the agreed price, which they declared had been bargained at too low a...