Martin v. T. L. James & Co. , 237 La. 633 ( 1959 )

HAWTHORNE, Justice.

Defendant T. L. James & Co., Inc., had two contracts with the Highway Department of the State of Louisiana for the construction of highways, one designated as the Donaldsonville-White CastlePlaquemine job and the other the Patterson-Calumet-Berwick job. James entered into a contract with plaintiff Theodore H. Martin, Sr., doing business as Martin Gravel Company, for the purchase of red clay gravel, wash gravel, and wash sand to be used in these projects. The contract for the sale and delivery of these materials was in the beginning an oral one, but subsequently written contracts were prepared at Mr. Martin’s request for use in obtaining hank credit, and the existing oral contract was thus reduced to writing. In these contracts Martin agreed to sell, and James agreed to buy, sand and gravel in approximated quantities at a fixed price per cubic yard for each commodity. For the Donaldsonville-White Castle-Plaque-mine job Martin 'bound himself to deliver these commodities by barge at his own expense to either White Castle or Plaque-mine and to unload them there at his own expense. For the Patterson-Calumet-Berwick job he contracted to deliver these commodities by barge to Berwick and there unload them at his own expense. Under these contracts T. L. James was to pay for all materials delivered within 30 days of delivery.

Pursuant to these contracts the plaintiff acquired the materials sold to the defendant from pits near St. Francisville and employed independent truck operators to transport these materials to a site on the hank of the Mississippi River near St. Francisville, where they were stockpiled or dumped. From this point the materials were loaded by dragline onto barges, which did not belong to the plaintiff, and thence transported to the points of destination stipulated in the contracts and there unloaded, all at the expense of the plaintiff.

Since Mr. Martin was in need of financial assistance, T. L. James, according to the testimony of its general superintendent in charge of operations, agreed to advance payments to Mr. Martin on estimated delivered quantities with the full understanding that adjustments would be made according to the actual delivery at the places called for in the contracts. During much of the stockpiling and barge-loading at St. Francisville the James Company kept an employee there to check the quantities of materials delivered by plaintiff at that point because it was advancing money to Martin and wanted to verify the shipments and have some idea of the correctness of the invoices covering the materials which it was purchasing and which were being invoiced to it by Martin. Sometime later plaintiff asked the James Company to free him from his contracts because he was having difficulty in obtaining material that was satisfactory to the highway department, and accordingly by mutual agreement the contracts were terminated.

Defendant paid all invoices submitted with the exception of those dated June 25 and July 2, 10, 14, and 21, 1956, amounting to $20,702.40. Plaintiff brought suit for this amount, alleging that it was a balance due for sand and gravel delivered to the defendant, and also sought judgment for $5,852.90, the amount of sales tax which he alleged James was to pay, and $50,000.-00 as damages to his credit and reputation because of James’ failure to pay for the materials delivered.

Defendant James denied the indebtedness and reconvened claiming that it had paid Martin on the basis of his invoices, and that these invoices called for payment for more sand and gravel than had actually been delivered. The return of such overpayment was demanded, and in brief filed in this court James contends that the amount of this overpayment is, at the very least, $25,693.54. It also in its reconventional demand sought additional sums because of necessary expenses incurred in connection with the contracts for which it alleges Martin is responsible and for which it ought to be reimbursed, one of these being an item of $1,750 paid by it in behalf of Martin as rental for a dragline from May 2 through June 7, 1956.

After a lengthy trial in the lower court judgment was rendered rejecting both plaintiff’s demand and defendant’s reconventional demand. This judgment, however, reserved to the plaintiff the right to be reimbursed by the defendant for any sales tax and penalties which he might have to pay to the State of Louisiana on the gravel and other materials sold to the defendant. It non-suited defendant’s re-conventional demand in which defendant sought $1,750 for rental of the dragline. Both plaintiff and defendant appealed.

In our minds this case presents a question of fact: How much sand and gravel was delivered by the plaintiff to the defendant pursuant to the terms of the contracts ?

It must be observed at the outset that neither plaintiff nor defendant actually made any measurements of the quantities of materials at the points of destination called for in the contracts, that is, White Castle, Plaquemine, and Berwick.

In his effort to establish the amount of sand and gravel delivered to the defendant plaintiff relies on the fact that these materials were transported from the pits in five-cubic-yard trucks and stockpiled on the river bank at St. Francisville. In getting the total amount which he says was delivered he counted the number of truck loads placed on the stock pile on the river bank at St. Francisville, and argues that this represents the total amount delivered because title to the sand and gravel at that time vested in the defendant, even before the material was loaded on the barges for transportation to the various points at which he was obligated to deliver it under his contracts. He further sought to establish the quantity by the number of barge loads delivered multiplied by the capacity of the barge.

These methods of computation are totally unsatisfactory. The evidence in this case discloses that not all of the trucks were loaded with five cubic yards' of material, and plaintiff allowed nothing for spillage between the gravel pit and the stock pile. Also, he allowed nothing for loss or spillage in transferring the materials from the stock pile at St. Francisville to the barges, and nothing for any loss incurred at the points of unloading. Moreover, in many instances the barges were not loaded to capacity.

There is no merit whatever in his contention that title to these materials vested in the defendant on the river bank at St. Francisville, for by the plain terms of his written contracts he was to deliver this sand and gravel at his own expense to the points designated, of which St. Francisville was not one. However, even if for the sake of argument we were to concede that Martin stockpiled at St. Francisville the exact amount of sand and gravel which he is now contending he sold to the James Company, Martin would not benefit by this fact unless he could also prove that he delivered these exact amounts of sand and gravel to the James Company. Article 2467 of our Civil Code provides that as soon as the contract of sale is complete, the thing sold is at the risk of the buyer, but Article 2468 states that until the thing sold is delivered to the buyer, the seller is obligated to guard it as a faithful administrator, and that if through his want of care the thing is destroyed or its value diminished, the seller is responsible for the loss.

The burden was on plaintiff to establish the quantity of sand and gravel sold and delivered by him to the defendant, and it was incumbent upon him to prove by a preponderance of evidence that the quantity of sand and gravel for which he is seeking recovery was actually received by the defendant at the delivery sites as stipulated in the contracts. This he has failed to do.

On the trial plaintiff sought to offer evidence on his claim for $50,000 damages as an injury to his reputation and credit because of the failure of the defendant to pay for the materials sold when payment becam,e due. Defendant objected to this evidence, and the objection was sustained by- the trial judge. We think the judge was correct in sustaining the objection under Article 1935 of the Civil Code, which provides:

“The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.”

In any event, however, before plaintiff could prove that he was entitled to damages because of defendant’s failure to pay, he would have first had to prove that the defendant actually owed him the amount claimed. This he has not done.

With reference to the $5,852.90 claimed by Martin for sales tax and penalty due the State of Louisiana, the trial judge found that this tax had not been paid by anyone, that the James Company had agreed to pay the tax, and that Martin was justified in assuming that the . company would pay the tax directly to the state. But the trial judge did not give Martin judgment on this item because he was of the opinion (a) that the amount of the tax and the payment thereof were matters to he determined by the state, and (b.) that there was a dispute between petitioner and defendant as to the actual amount.of gravel that was sold to defendant by petitioner, defendant’s figures being supplied by the State Department of Highways, and that “until the matter is adjusted contradictorily with the State of Louisiana, this Court cannot arrive at a correct figure for the tax”. However, the trial judge reserved to Martin as against T. L. James & Company the right to reimbursement for any tax and penalties that Martin might be required to pay to the State of Louisiana on the materials sold to defendant. We are in full accord with this ruling.

With reference to James’ reconventional demand in which it claims it paid Martin on the basis of invoices which called for payment of more sand and gravel than had actually been delivered and seeks judgment in the amount of these overpayments, the trial judge had this to say:

“The defendant, itself, made and kept no measurement of the road material supplied to it by Mr. Martin. The method employed by the defendant in arriving at the amounts of the claimed shortages is simply to take the total figures supplied to it by the Department of Highways of materials used in the road project, and deduct the amount of materials bought from and supplied by a number of other suppliers, and then by a complicated system of allowances for moisture content, stockpile losses, recoveries from a cave in, it comes up with a figure which represents the amount of material supplied by Mr. 'Martin, and thereby determines his shortage. The evidence shows that T. L. James & Co., Inc. purchased much material on these two road projects from others than Mr. Martin, and there is nothing to convince this Court that the measurements of material supplied by such parties were any more accurate than those made by Mr. Martin. The whole picture presents a matter of too much speculation and uncertainty to justify this Court in rendering a judgment on the reconventional demand as to the claimed material shortages.”

In this court counsel for James maintain that the trial judge misunderstood their evidence, and that the James Company itself had made careful measurement of the sand and gravel which it purchased from suppliers other than Martin. Even if we concede that James’ measurements were carefully made, there is still too much speculation in James’ argument. -If James wanted to know exactly how much material it was getting from Martin, it should have weighed and measured all the material as it was received, just as the highway department does, for that is the only reliable way to check on the quantity.

As to the item of $1,750 claimed by James as rental for a dragline paid on behalf of Martin, the 'trial judge correctly said:

“ * * * The most serious of the items listed * * * is that of ‘Payment to J. V. Pearson- — -Rental on dragline May 2, 1956 thru June 7, 1956’. This came about because Mr. Martin asked James to locate for him a dragline to be used at St. Francisville, which was done. The operator or owner of the dragline knew it was for Mr. Martin, but since James had asked Pearson to' supply the dragline, James paid him. Mr. Martin contends that the charge was excessive, or that he has a legitimate claim against Pearson, and that he could have and would have properly adjusted the matter with Pearson. Martin contends, therefore, that to force him to pay the full amount to T. L. James & Co., who paid the bill without his consent or authorization, would deprive him of his legal rights and defenses as against the charge. It is believed that there is merit in this contention. It is also doubtful that this item is set out with sufficient clarity and detail to justify proof thereon. Consequently, as to this item, the demands of the defendant, T. L. James & Co. Inc. will not be rejected, but only dismissed without prejudice.”

The other items claimed in the reconventional demand were disallowed by the trial judge either because the evidence adduced .to prove ■ them was too vague and indefinite or because the -expenses for which defendant claimed reimbursement were not obligations 'of the plaintiff under the contracts. We think the rulings on these items were correct.

The judgment appealed from- is affirmed.