King Bros. v. Perfection Block Machine Co. , 81 Kan. 809 ( 1910 )

The opinion of the court was delivered by

BENSON, J.:

Various errors are assigned relating to the petition, the testimony, the instructions, and the findings.

The petition stated a cause of action. It alleged the contract, the failure of the defendant to comply with its terms, and the resulting damages. It stated thé facts constituting the cause, of action, as required by the code. (Civ. Code 1909, § 92.) It is argued that the petition ought to have contained an allegation that the plaintiffs had returned or offered to return the property. It was stated, however, that the machinery did not meet the requirements of the agreement, and as there was no averment of acceptance or that possession had been taken by the plaintiffs an allegation that the machinery had been returned would have been inconsistent. The fact that the defendant had placed the machinery in the plaintiffs’ building does not necessarily prove a delivery and acceptance, for such installation was necessary to its successful operation by the defendant — a condition precedent to acceptance and payment.

The exceptions taken upon the admission of testimony and to the instructions are based upon the failure of the plaintiffs to return the machinery or to offer to do so, and upon the measure of damages. Whether it was necessary to offer to return the property depended on the possession at the time. If it was still in the hands of the defendant, and not delivered to, or accepted by, the plaintiffs, they could not return it, and an offer to do so would have been an idle ceremony. The court submitted this question of delivery and acceptance fairly to the jury, and it was decided against the defendant’s contention. The court instructed the jury fully and fairly concerning the test provided for in the contract to show the capacity of the machine, and the duty of the parties in respect thereto, and submitted the questions whether a reasonable time had been given to the defendant to comply with this condition and whether it had in fact been complied with.

The jury were instructed that if entitled to recover the plaintiffs might be allowed the advance payment made upon the machinery, the amount of freight paid (which by the contract was to be advanced by the plaintiffs and credited upon the price of the machine), and, if they found that the building was erected on purpose for this machinery under the direction and superintendence of the defendant, as alleged, the amount necessarily expended in its construction, less its fair and reasonable value at the beginning of the action; also the sum necessarily paid out by the plaintiffs for labor and material in making the experiments by the defendant in its tests of the machine, less the value of any materials left on hand. Thus the court carefully restricted the damages to the sums advanced and actual expenditures incurred in necessary preparations for executing the contract.

Expenditures necessarily made in anticipation of, or preparation for, the performance of a contract in which default is made or fulfillment prevented by the other party are usually recoverable. (8 A. & E. Encycl. of L. 637, 638.) Any necessary expense incurred by a contracting party in complying with the contract may be recovered against the party in default. (Bryan v. South Western Railroad Company, 41 Ga. 71; Taylor v. Spencer, 75 Kan. 152.) In an action on an agreement to construct a melting furnace for a glass factory it was held that for a breach by .the contractor the owner might recover, among other items, the expenses incurred and material lost in attempting to operate the furnace, so long as it was reasonably necessary to do so to ascertain whether it could be operated successfully. (Dixon-Woods Co., Appellant, v. Phillips Glass Co., 169 Pa. St. 167.) This is the rule in this state (Gas Co. v. Glass Co., 56 Kan. 614), and in other jurisdictions. (13 Cyc. 63.) It is argued, however, that it has no application in an action to rescind a contract, but that in such an action only advances actually made to the adverse party can be recovered. This view, however, is not supported by citations and is opposed by the authorities. In the second enlarged edition of Bishop on Contracts, § 834, it is said:

“Where rescinding is permissible, and it has been lawfully made by the party not in fault, or unlawfully by the other party, the one entitled may recover back the consideration, or whatever else he has paid on the contract, including compensation for work done, goods delivered, and the like, prior to the rescission.”

The author cites many cases under this section. It was held in Michigan, in an action arising upon the sale of a horse as sound, which had been returned because of unsoundness, that the purchaser might recover not only the money paid for the horse but expenditures in transportation, keeping, and medical attendance, for such time as would be necessary to satisfy a prudent man that the horse was worthless. (Murphy v. McGraw, 74 Mich. 318.) In Freeman v. Clute, 3 Barb. [N. Y.] 424, a party who had purchased an engine and boiler, which, when furnished, did not meet the requirements of the contract, recovered not only the amount paid but expenses actually incurred in attempting to put the engine in operation. This opinion has been cited several times with apparent approval by the court of appeals of that state.

In this case the expenses were not only such as ought to have been anticipated by the defendant, but they were required by the agreement itself, and were incurred under the defendant’s supervision.

It is contended that the finding of the jury that the plaintiffs never had possession of the machine is contradicted by other findings to the effect that it had been delivered at, and installed in, the plaintiffs’ building, and that when it was not in operation the building was locked; that one key was kept by the plaintiffs and one by the defendant’s superintendent, but that at the commencement of the action, while one key was still kept by the plaintiffs, it was not shown who held the other. These findings fall short of demonstrating that the plaintiffs were in possession of the machine, and can not be held to overthrow the express finding to the contrary.

Many of the instructions requested were embraced in substance in those given, and the charge of the court was complete, covering all the issues. The findings were supported by competent testimony, and sustain the verdict.

The judgment is affirmed.