Williams v. Island City Mercantile & Milling Co.

• Decision Date: 28 June 1894
• Citation: Williams v. Island City Mercantile & Milling Co., 25 Or. 573, 37 P. 49 (Or. 1894)
• Parties: WILLIAMS et al. v. ISLAND CITY MERCANTILE & MILLING CO.
• Court: Oregon Supreme Court

37 P. 49

25 Or. 573

WILLIAMS et al. v. ISLAND CITY MERCANTILE & MILLING CO.

Supreme Court of Oregon

June 28, 1894

Appeal from circuit court, Union county; James A. Fee, Judge.

Action by Williams & Groat against the Island City Mercantile &amp Milling Company for the value of goods furnished and labor performed.Judgment for defendant.Plaintiffs appeal.Reversed.

Johnson & Idleman and T.H. Crawford, for appellants.

Cox, Teal & Minor and R. Eakin, for respondent.

BEAN, J.

This is an action to recover the sum of $2,572.35,--an alleged balance due on account for materials machinery, and appliances furnished, and work and labor performed, by the plaintiffs for the defendant.The complaint alleges that between the 1st day of May, 1886, and the 1st day of January, 1887, the plaintiffs, at the special instance and request of defendant, and for its use and benefit furnished a large amount of material and machinery for the rebuilding, construction, and repair of a certain flouring mill of the defendant, and, between said dates, performed a large amount of work and labor for the defendant in the rebuilding, construction, and repair of said mill and its attachments; that the material and machinery so furnished and labor performed, were and are of the reasonable worth and value of $8,134.25; that the sum of $5,631.10 has been paid thereon, and no more,--and prays judgment for the balance of $2,503.15, with interest thereon from January 1, 1887.The answer denies the allegations of the complaint and alleges in substance, that on June 5, 1886, the plaintiffs and defendant entered into a contract in writing, by the terms of which plaintiffs were to furnish the material, machinery, and appliances, and perform the work and labor, necessary in reconstructing and remodeling the defendant's flouring mill as in the complaint mentioned, and in changing the machinery so as to manufacture flour by the roller process, for which they were to be paid the sum of $8,134.25 at certain specified times, and that $5,631.10 has been paid thereon; that the work was to be fully completed by the 10th day of September, 1886, and the plaintiffs guarantied that the mill, when completed according to their contract, would have a capacity of 60 barrels of flour in 24 hours, and make as much and as good flour from a bushel of wheat as any other mill in eastern Oregon, when grinding the same kind of wheat; that in pursuance of said contract the plaintiffs undertook to refit said mill as therein provided, but have failed and neglected to comply with their contract, in this: that said mill was not finished and turned over to said defendant at the time agreed on, nor until 10 days thereafter, to wit, on the 20th day of September, 1886, and that when completed it did not have a capacity of 60 barrels of flour in 24 hours, or any greater capacity than 45 barrels, and would and could not make as much flour from a bushel of wheat "as any mill in eastern Oregon, when grinding the same kind of wheat;" that, by reason of the delay in the completion of the work, it is damaged in the sum of $405; that, after the mill was turned over to the defendant, it failed to do the work guarantied by the contract, and the plaintiffs made divers attempts between September 20th and December 20th to make it comply with the contract, and in so doing required it to be shut down from time to time, aggregating in all about 10 days, during which time the use of the mill was lost to the defendant, to its damage in the sum of $450; that by the difference in the actual capacity of the mill, as turned over, and the guarantied output, it was further damaged in the sum of $8,482.50, and for the failure to make as much flour from a bushel of wheat as other mills in eastern Oregon, when grinding the same kind of wheat, it claims $4,241.25 as damages; that on the 20th day of September, 1886, the contract was voluntarily abandoned by plaintiffs, and defendant thereupon took possession of the mill, and operated the same to the best advantage until the 10th day of February, 1889, when it employed other persons to repair said mill, which necessitated a suspension of operations for the period of 90 days, during which time it wholly lost the use of the mill, to its damage in the sum of $4,050.The defendant therefore claims to recoup in this action the damages sustained by it in the loss of the use of the mill from the 10th day of September, when the contract should have been completed, to the 20th of the same month, when it took possession; for the loss of its use during the 10 days it was shut down after the 20th of September, at plaintiffs' request, while they were attempting to comply with their contract; for the loss occasioned by the difference between the actual and the guarantied capacity of the mill, and in the amount of wheat necessary to make a barrel of flour, in excess of that required by other mills in eastern Oregon, when grinding the same kind of wheat; and also the loss of the use of the mill during the time it would have been necessary to shut it down in order to enable the defendant to make the repairs and additions necessary to bring it up to the required capacity.By direction of the court the jury made special findings, from which it appears that they allowed plaintiffs $1,342.06 as the value of the material furnished and work performed by them over and above the admitted payments, and $739.13 as interest thereon, and allowed the defendant, as damages for the loss of the use of the mill from September 10th to September 20th, $200; for the loss of the use of the mill while stopped for repairs by plaintiffs after September 20th, $200.25; for the difference between the actual and the guarantied capacity of the mill, $720; for the excess in the amount of wheat required to produce a barrel of flour, in comparison with the Union mill, $108; and for the loss of the use of the mill during the time it would have been necessary to have shut it down in order to perform the work necessary to make it comply with plaintiffs' contract, $1,225; and for a general verdict in favor of defendant for $362.06.

The record contains numerous assignments of error, based upon the rulings of the court in the admission of testimony, and the giving and refusal of instructions; but, as they all present the same question, they need not be set out in detail.The question thus presented is the right of the defendant to recover, as the measure of damages for breach of the contract, the anticipated or expected profits which it might have realized from the operation of its mill, had the contract been complied with.The evidence tended to show that, at the time the contract was made, defendant's mill had been in operation for several years, and had a capacity of 75 barrels of flour in 24 hours; that defendant had an established business, and a ready sale for all the flour it could manufacture, at an average profit of 75 cents per barrel; that, at the time the contract was to have been completed, it was ready to operate the mill, and had on hand or within easy reach, sufficient wheat for the purpose; that its trade extended throughout eastern Oregon and Idaho, its sales being usually made on 60 days' time; that the profits of the business depended to some extent upon the solvency and promptness of its customers; that plaintiffs' representative and agent, through whom the contract was made, went through the mill, and saw the business it was doing, before the contract was entered into.And the evidence further tends to show that there was no established rental value of the mill, which could be made the measure of damages for the loss sustained while it was idle; that plaintiffs claimed to have completed their contract on or about the 20th of September, 1886, at which time defendant took possession of the mill, but soon discovered that its work fell short of the guaranty, in that its actual capacity was only about 45 barrels of flour in 24 hours, and it required more wheat to make a barrel of flour than required by other mills in eastern Oregon, whereupon the plaintiffs, from that time until some time in December following, endeavored to comply with their contract, by making further improvements and repairs, but, failing in the effort, wholly abandoned the performance of their contract on or about the 20th of that month; that the defendant then took possession, and continued to operate the mill until some time in February, 1889, when a new contract was entered into with other parties, to reconstruct it so as to enlarge its capacity to 75 barrels in 24 hours; and that, in order to make these repairs, it was necessary to shut the mill down for about three months.Upon this testimony the court charged the jury that if plaintiffs constructed the mill mainly according to their contract, and furnished the material and performed the work and labor in good faith, with intent to comply...