Shouse v. Neiswaanger , 1885 Mo. App. LEXIS 326 ( 1885 )

Opinion by

Philips, P. J.

There are two questions presented by. this appeal which are of controlling importance. They are, first, admitting the truth of defendants’ evidence, were they entitled to recoup any damages for the failure of plaintiff to deliver the lumber at the time agreed upon; and second, were they entitled to recover more than nominal damages ?

1. It is conceded, in argument by plaintiff’s counsel, that there was evidence tending to show that plaintiff agreed to furnish the lumber on or about the 15th of October, 1879. It is also conceded by the instruction, that if plaintiff made default in delivering the joists at the time stipulated, it constituted a breach of his contract; but that the damages would be merely nominal.

If the plaintiff had contracted with defendants for the delivery of this lumber at a given time and place, without any knowledge on his part of the purpose or use for which it was contracted, the rule of law is well settled, that for the breach of such contract on the part of plaintiff, the vendor, the measure of damages would be the difference between the contract price and the market value of such lumber at the time and place of delivery according to the contract.

But the real question at bar is, did not the plaintiff have notice that this lumber was designed for a special purpose % Aside from the other evidence in this record, strongly tending to show that plaintiff must have known the particular fact, the mechanic’s lien filed by plaintiff, and read in evidence by him, shows that he knew at the time of entering into the contract that it was to be used by defendants in erecting this particular building on their lot. By the very provisions of the lien law, under the statute, it is made essential to the establishment of the lien that plaintiff should have furnished the material under a contract with these defendants for this purpose. His affidavit to the account filed confesses that he so contracted and furnished the lumber. Superadded to which, the evidence on the part of the defendants was such as might reasonably warrant any jury in making the inference that plaintiff was advised of the specific object for which this lumber was contracted. Its-peculiar and limited quality and character, and the anxiety manifested by defendants in their interviews with plaintiff concerning it, were such as to have impressed any reasonable person with the fact that the building was in process of erection, and the emergency for the prompt delivery of the lumber was great.

Under such a state of the proof we think the court improperly limited the inquiry as to damages.

2-. Sutherland on Damages, vol. 1, p. 397, et seq., expresses the general doctrine on this subject thus: “When goods, or those of a particular description, are bargained for, for a special purpose, or for delivery at a particular time and place, in view of ulterior contracts or preparations, a failure of the vendor to perform may cause injury which would not be compensated by that rule (i. e., the difference between the contract price and market value); but unless that purpose, or the special circumstances from which, in case of default, such consequential damages would proceed, were communicated to' the seller when the bargain was made, such damages, though they may arise naturally and proximately from the breach of the contract, are yet exceptional, and cannot be said to have entered into the' contemplation of the parties. But if, at the time of contracting, sufficient notice be given of the intended use, or of other and dependent plans, the vendor, on failure to deliver, or delaying* delivery, will be subject to such damages. This rule is based upon reason and good sense, and is in a strict accordance with the plainest principles of justice. It affirms nothing more than where a party sustains a loss by reason of a breach of contract, he shall, so far as money can do it, be placed in as good a situation, by recovery of damages, as if the contract had been performed.”

The leading case on this subject, to which all the courts refer for a reasonable rule, is that of Halley v. Boxendale (9 Exch. 341 S. C. 26 Eng. L. & Eq. 398), in which Baron Alderson said: ‘ ‘ Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of. contract, should be such as may be fairly and reasonably considered, either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate would be the amount of the injury which would ordinarily follow from a breach of the contract under these circumstances. so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he could only be supposed to have had in contemplation the amount of the injury which would arise generally, etc.”

The trouble arises in making a practical application of the rule to the varying state of facts and circumstances of each particular case. The weakness of the defendants’ case, as presented in the bill of exceptions, lies principally in the matter of carrying home to plaintiff special knowledge of the facts attending the situation of the building and the work in progress thereon.

3. As already stated, the knowledge which the plaintiff had at the time of making the contract, was that the lumber was designed for this particular building then in process of construction. It might be reasonably inferred, from the character of the lumber ordered, that it was to form a support for the floor, and was indispensable to the completion of the structure. And,, further, that there was some emergency for its timely delivery. The plaintiff is, therefore, only liable for such damages as might reasonably have been anticipated would likely result, according to the usual course of things, from his failure to comply, or such as may reasonably be supposed to have been within the reasonable contemplation of the parties.

We are of the opinion that the evidence in this case is-such as to make plaintiff liable for the loss of the use of the building during the time its completion was delayed by the failure of plaintiff to deliver the lumber according to contract. Such damages are natural and reasonable, and such as any reasonable person might well anticipate-to be likely to result from such delay.

In Brown v. Foster (51 Pa. St. 174-5), a party failed to complete a steamboat within the time promised. The measure of damages was held to be, not what it would cost the party to hire another boat for the time, but what would be the ordinary hire of such a boat during the time.

In Ruff v. Rinaldo (55 N. Y. 664), it is held that the measure of damages for the breach of a contractor’s-stipulation to build in given time, is the value of the use of the building while the owner is deprived of the use consequent upon the delay. It is further held in this-case, that the permitting the delinquent to complete the work afterward does not waive the right of the other-party to claim damages. This is the general rule. Brown v. Foster, supra; Bragg v. Town of Bradford, 33 Vt. 39; Marsh v. Richard, 29 Mo. 99 ; Downs v. Burke, 23 Mo. 228.

In Griffin v. Colver (16 N. Y. 489), the defendants-contracted to construct for plaintiff a steam engine and deliver it by a certain time. They failed to deliver within the specified time. The measure of damages was declared to be, “a fair price to pay for the use during the time-(of the delay) of the engine and machinery, in view of the hazard and chances of the business.”

In Strawn v. Coggswell (28 Ill. 461), the plaintiff sought to enforce a mechanic’s lieu for' work done on a mill, etc. The defendant claimed damages for the manner in which the work was done. The court held the measure of damages to be, “the difference in value between the work as performed and such as the contract required, together with the necessary loss of its use while the change is being made.”

In Benton v. Fay & co. (64 Ill.), it is held, in a suit for failure to deliver a planing machine, bought by plaintiff of defendant, that the plaintiff should be allowed to show what would have been a fair rent for the use of the building and machinery, if in running order, during the time they lay idle in consequence of defendant’s default.

The court, after citing a number of adjudged cases in support of its holding, observes: “It is claimed by defendant’s counsel that none of these cases decided by this court.related to contracts of sale. That is true, bat we can perceive no difference in principle between the sale of a specific article for a specific purpose, and a contract to construct or to carry such an article for a specific purpose, so far as relates to the rule of damages to be applied in the respective cases.” It can make.no difference in such case that the defendants might have obtained another building for less rent or without any rent, or whether they could have found a ^Lessee for this building if completed. The rule rests on no such foundation. In justice alike to both parties, it rests upon the definite, uniform and equitable principle of a fair rental value for the building during the time of the delayed completion. .

4. As to the damages claimed for injury to the flooring and the walls, we do not see how they can be allowed, unless the evidence showed that plaintiff had notice at the time of entering into the contract that the flooring and walls were built, or that they wo.uld be built in anticipation of the prompt coming of the joists ; and that the parties should reasonably anticipate that they would be subjected to the casualties of weather which came upon them. We think it would be unreasonable, in the absence of proof, that plaintiff bad knowledge that the floor was laid or would soon be laid in the manner it was, that be should be held to accountability for the somewhat unusual exposure and damage consequent upon heavy rains and snow falls. Likewise as to the injury to the walls. We do not think the natural law of the exposure of walls at that season of the year is so uniform as to make the damage claimed in this case “certain, both in its nature and in respect to the cause from which it proceeds.” Griffin v. Golver, supra.

5. As to the item of damages on account of the salary paid by defendants to the superintendent of the building, we are of opinion that the proof would not have warranted the court in finding such issue for the defendants. the evidence does not show that plaintiff bad any knowledge that defendants bad such superintendent employed, much less that they bad with him such contract as authorized him to draw bis salary while the work was delayed. It was not shown that any such custom prevailed. In Davis et al. v. Chinn H. & D. R. R. Co. (Disney, Ohio 38), which was an action for damages for failure to deliver a boiler for a steam saw mill in a reasonable time, the court say: “As the article to be carried was evidently intended for use, and not for sale, and its use required certain preparations, these might or might not have been made in advance. If they were in fact so made, and a loss was incurred for the want of the article, which was the subject of the contract of carriage, it is one, I think, of that character which might have been reasonably supposed a party who has constructed a boiler adapted to a saw mill, and who contracts for its carriage to a place in the interior of the country, means to put in immediate use, and it is equally reasonable to suppose, that be has made the usual and necessary preparation for such a purpose. * * * I do not think it could have been reasonably expected that an engineer would have been employed, and bis wages have been commenced in anticipation of the completion of the mill.”

6. The respondent insists that the rule of damages maintained in the foregoing part of this opinion ought not to obtain in this case, for the reason that defendants might, by reasonable exertion, have avoided the loss by purchasing the lumber in market. In support of this position we are referred to the case of Clark v. Moore (3 Mich. 55). The contract there was that defendant was to furnish plaintiff all the tarred and manilla cordage, etc., necessary to rig a vessal plaintiff was then rigging at Truggo. In an action for damages for failure on the part of defendant to deliver all of this material the court held, first, that owing to the peculiar phraseology of this contract, the designation of the use to which this cordage was to be put, was “merely to designate the quality to be furnished, and not an undertaking that the vendee should have the use of the goods for the purpose specifiedand, second, that as such articles were usually kept and to be found elsewhere in that market, although it transpired when ' plaintiff, after defendant’s failure to deliver, tried but failed to obtain the material in that market, the plaintiff could not recover any special damages because it was not within the reasonable contemplation of the parties, at the time they entered into the contract, that the market where such goods were customarily kept, would be wholly exhausted.

Without giving my assent to this conclusion as sound law, it is perfectly consistent with the right of recovery in this case. Here the fact is, that the plaintiff knew when he entered into this contract that this character of lumber was not obtainable in the market at Kansas City. He knew that it required to be especially prepared, and this could only be done from this- market, and far away from it. • It is in this respect much like the case of Cockburn et al. v. The Ashland Lumber Co. (54 Wis. 619). The contract there was for the delivery of certain kind of lumber for a certain purpose at a given time and place. The evidence showed there was no such lumber in the market where this contract was to be executed. The court permitted the defendant to prove that plaintiff might have procured such lumber at another point on a certain railroad line. The court held this to be error. After reverting to- the general rule for the ascertainment of damages in ordinary contracts for failure to deliver goods, Lyon, J., says : “But this rule pre-supposes that the purchaser may go into the market at the agreed time and place of delivery and obtain the goods. If no such goods can be obtained at-this place there can be no market price there by which to measure the purchaser’s damages. The. idea that there can be a real substantial market price for a given commodity when there is no such article for sale in the market is absurd. * * * The court admitted testimony tending to show that the plaintiff could have procured the deals to be manufactured at some of the mills on the W. Railway. We think the testimony should have been rejected. We find no proof that the plaintiff had any notice that the defendant would not perform its contract until it made default. * * * Until they have notice to the contrary the plaintiffs might well rely on their contract with the defendant to obtain the deals• and before the defendant can be allowed to show that the deals might have been obtained by the plaintiffs at the mills on the railroad must show not only that the deals, of the grades and dimensions specified in the contract, could have been thus obtained, but that plaintiffs had sufficient time after notice that defendant would not deliver, and before the time (of delivery specified in the contract) to purchase the same at the place (named) etc.”

This ruling we concur in; for it stands upon that' ancient canon of the law of contracts, that “where a party by„his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” Paradike v. Jayne, Alleyn Rep. 23 ; 23 Car. 2; Davis, Admr., v. Smith et al., 15 Mo. 467. And Mr. Justice Swayne, in Dermott v. Jones, 2 Wall. 7, adds: “ Unforeseen difficulties, however great, will not excuse him.”

7. It follows that the first instruction given by the court was too narrow. Should the defendants on a further trial, seek to bring their claim for the damages, other than the rental value of the premises, within the principles laid down in this opinion, their instructions should be so framed as to present more directly, for the finding of the jury, the question of the extent of the notice or knowledge had by the plaintiff at the time of entering into the contract.

The judgment of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this opinion.

All concur.