Busbee v. Gagnon Co. , 50 Mont. 203 ( 1915 )

MR. CHIEF JUSTICE BRANTDY

delivered the opinion of the court.

' This action was brought to recover a judgment for damages for breach of a contract. On May 12, 1912, the defendant having theretofore secured a contract for the erection of a courthouse for Granite county, the plaintiff entered into a contract with it to manufacture and deliver to it at the courthouse site “400,000 brick or more,” as required by the defendant, at an agreed price of $10.50 per thousand. The defendant was to notify the plaintiff of the approximate number .required, “not later than the time for the burning of the last kiln.” It was stipulated that the plaintiff should “commence delivering the brick not later than July 1 in sufficient quantities to keep the work going,” but that a delay not to exceed a week later than that date, resulting from bad weather or other unavoidable cause stopping the work of brickmaking, the plaintiff using due diligence, should not be deemed a violation of the contract. On the 10th day of each month the plaintiff was to receive payment in full, at the stipulated price, for all brick delivered during the previous month. As a ground for recovery it is alleged, in substance, that the plaintiff between July 1 and September 15, 1912, manufactured 400,000 brick and delivered to the defendant according to the terms of the contract’ 313,622, for which he received the contract price per thousand; that he thereafter offered to deliver the balance of 86,378, in such numbers and at such times as the defendant might ■ require, and demanded that the defendant inform the plaintiff as to the number required and the time of delivery; and that he was informed by the- agents of defendant that it would not accept further delivery from him. It is further alleged that the plaintiff has duly performed all the conditions of the contract to be performed by him; that he is ready and willing to deliver the balance due, and that by defendant’s refusal to accept delivery thereof and pay the purchase price, he has been damaged in the sum of $909. Defendant’s answer, besides making denial of some of the allegations of the complaint presenting issues which it is not now necessary to notice, alleged the following counterclaims as defenses: (1) That the plaintiff violated the contract in failing to deliver brick during the month of- July in quantities sufficient to keep the work going; that defendant was compelled to purchase brick elsewhere to the number of 36,000, at a cost of $3 per thousand higher than the contract price; and that by reason of the premises the defendant was damaged in the sum of $108. (2) That the plaintiff failed to deliver brick sufficient to keep the work going, whereby the defendant was compelled to lay off men and delay the work of erection for more, than, twenty days, at a cost of $20 per day, thus suffering damage in the sum of $400. And (3) that large numbers of the brick furnished by the plaintiff were unsuitable for use and unfit to be put into the walls of the building because they were broken into pieces at the time of delivery; that because of their broken condition the cost of laying the whole number delivered by plaintiff was $1.50 per thousand over and above what the cost would have been had plaintiff delivered them in' suitable condition; and that defendant thereby suffered damage in the sum of $470.43. Judgment is demanded for these several fl.mnnnt.s- Upon all of these defenses there was issue by reply. The court made findings in favor of plaintiff on all the issues, except those arising upon the first counterclaim. In this behalf it found that the defendant was entitled to a credit of the amount paid for the 36,000 brick at the price of $13.50 per thousand, and that for the balance the plaintiff was entitled to recover at the price stipulated in the contract, less $1.75 per thousand,-the cost of hauling from the kiln to the courthouse site. It ordered judgment for tbe plaintiff for tbe balance thus ascertained, amounting to $332.80, together with costs of the action. The defendant has appealed from the judgment and the order denying its motion for a new trial.

That the findings and decision of the trial court upon the first counterclaim were correct is not now questioned. The only contention made is that the findings upon the issues relating to the second and third are not justified by the evidence. As to the second, the evidence discloses these facts: The plaintiff, having finished the burning of his first kiln containing 100,000 brick, began and continued deliveries until July 31, when delivery of the entire number of 100,000 was completed. The plaintiff was then engaged in burning a second kiln containing 200,000, having been delayed in completing it because of his inability to procure wood. On August 4, Mr. Hebb, the agent of defendant in charge of the construction work, was at the brickyards of plaintiff. Upon inquiry of plaintiff, he found that the burning would not be completed before August 12, and hence that the work of construction would be delayed until that time. Immediately thereafter he purchased 36,000 brick from a manufacturer in Missoula. There were then at the building site enough brick of those theretofore delivered by plaintiff to keep the work going for one more day. A part of those already delivered had been, by consent of defendant, diverted to a building in course of construction near by, by another contractor. Delivery of these was considered by defendant a delivery to it under the contract. It afterward paid for them. No complaint was made of the delay between August 4 and August 12, and as soon as the kiln was finished, and on August 12, plaintiff resumed and continued deliveries until the brickwork on the building was completed. Payments were punctually made by defendant as stipulated, in the contract, without notice to plaintiff that he would be held accountable for his failure to deliver brick sufficient to keep the work going. As to these facts there is no controversy, except as to the extent of the delay. Mr. Hebb testified that the construction work was delayed, for want of brick, from July 20 to August 12. While admitting that during July he diverted some brick to another building, he stated that the number was only 3,000. Plaintiff had fixed the number at 5,700. Mr. Suiter, another witness and an employee of defendant, said that the delay covered three or four weeks. Both stated, by way of conclusion, that the delay caused the defendant a daily loss of $20. There was no evidence showing, or tending to show, that the defendant was compelled to lay off any men as alleged in the answer, or to retain any in idleness for any number of days or at all. Nor did it appear that the defendant had to pay -the county a penalty for delay in the completion of the building. Neither of these witnesses — who were the only ones who testified on the subject — undertook to contradict the statement of the plaintiff as to what the condition of the supply of brick was on August 4, when the purchase was made at Missoula; nor is there any evidence tending to show that the bricklayers were not kept busily employed in laying these brick during every day from August 4 to August 12, when [1-3] plain-tiff resumed deliveries. In view of the admitted facts and the lack of definite statement by either witness justifying an inference that the defendant suffered damage, its claim for damages in a substantial amount was properly considered without foundation in the evidence. “No damages can be recovered for a breach of contract which are not clearly ascertainable, in both their nature and origin.” (Rev. Codes, sec. 6049.) Without regard to the apparent variance between the allegations of the defendant and the evidence as to the particular manner in which it suffered damage, the foregoing evidence does not, under the rule of the statute, justify any recovery other than the nominal damages which the law presumes as a result of plaintiff’s breach of the contract. (Raiche v. Morrison, 47 Mont. 127, 130 Pac. 1074.) By a purchase of brick from Mis-soula in order to avoid a stopping of the work, which defendant was bound to do, if reasonably possible (Ashley v. Rocky Mt. Bell Tel. Co., 25 Mont. 286, 64 Pac. 765), it forestalled the probable consequences of the breach and reduced the damages to a nominal amount.

We are inclined to the opinion that the damages alleged on this counterclaim should properly have been included as an [4] ■ item for which recovery could be had, if at all, under the first counterclaim. From this point of view they were one of the natural consequences of the delay which would have resulted but for the purchase of the supply of brick at Missoula. ' Upon this theory defendant was not entitled to recover even nominal damages, for the reason that he split his cause of action. (Murray v. City of Butte, 35 Mont. 161, 88 Pac. 789.) But upon the assumption that the matters alleged constituted an independent breach of the contract, and that defendant was entitled to recover nominal damages bn account of it, the court did not commit reversible error in failing to award them. A recovery would not have carried costs in any event. Such being the ease, a new trial may not be granted merely for the purpose of allowing the defendants to recover a nominal sum. (Wallace v. Weaver, 47 Mont. 437, 133 Pac. 1099.)

As to the third counterclaim, it is contended that since, under the statute (Rev. Codes, sec. 5110), the plaintiff must be [5] pre-sumed to have sold the brick to defendant with a warranty that they were reasonably fit and suitable for use in the building, and it appears without dispute that a large percentage of the entire lot were broken, thereby obliging defendant to incur additional expense in order to carry forward the work of construction, the court erred in refusing to find and assess substantial damages to the defendant in this behalf. As counsel' contend, it was not controverted by direct statement of any witness that many of the brick were broken — a much larger percentage than is usually the result of handling and hauling common brick, such as were the subject of the contract. Nor did any witness contradict the statements of the witnesses Hebb and. Suiter that the cost of laying the entire number delivered was increased to the extent of $1.50 per thousand. It is not clear whether Mr. Iiebb made complaint to the plaintiff as to the condition of the brick. He testified that he protested to the teamsters who delivered the brick, at the manner in which they did the unloading from the wagons, and thought that at one time, when at plaintiff’s brickyard, he had told plaintiff that the teamsters were delivering them in bad condition. The plaintiff denied emphatically that he had ever been spoken to on the subject by anyone, or had ever heard of any complaint. On the other hand, all brick delivered were promptly paid for as provided in the contract, without deduction or intimation that defendant would claim damages because of their condition. They were used in the construction of the building just as if they had been of suitable quality and in first-class condition. The rule is well established that, when one purchases articles under a warranty that they are reasonably suitable for the purpose for which they were purchased, he is not bound to rescind the contract and restore the articles upon discovering a breach of warranty, but may set up his claim for damages by way of counterclaim in an action by the plaintiff for the purchase price. (Best Mfg. Co. v. Hutton, 49 Mont. 78, 141 Pac. 653; Hillman v. Luzon Café Co., 49 Mont. 180, 142 Pac. 641.) Nevertheless it is incumbent upon the claimant to establish both the breach and the resulting damages by a preponderance of the evidence. [6] The conduct of defendant’s agents throughout the entire transaction was so entirely inconsistent with the claim now set up, that we think that the court was justified in rejecting the evidence adduced in support of it, and in finding that it was without foundation in fact. Evidently it concluded that witnesses whose testimony was pregnant with the admission that they had been guilty of using unfit material for the construction of a public building, thus defrauding the county, ought not to be regarded as trustworthy. We cannot say that it clearly abused its discretion in so doing.

The judgment and order are affirmed.

Affirmed.

Mb. Justice Sanneb and Mb. Justice Holloway concur.