Dewar v. Taylor

Plaintiff recovered judgment in the sum of $1,010, damages for breach of a contract by defendant, under which plaintiff was to log what afterward proved to be 505,000 feet of logs at $11 per thousand feet, the work having been stopped by defendant after part performance. The appeal is from the judgment and an order denying a motion for new trial.

Appellant specifies that the court erred in permitting plaintiff to prove damages for loss of profits under a general allegation of damages, and not specially pleaded. This was one of that class of contracts where the loss of prospective profits is the natural and necessary result of the breach, and must be presumed to have been contemplated by the parties in the making, and deemed to be contemplated in the breach thereof. In such case, the profits may be recovered without being specially pleaded. (Robinson v. Rispin, 33 Cal. App. 536,165 P. 979; Tahoe Ice Co. v. Union Ice Co.,109 Cal. 242, 41 P. 1020.)

Appellant specifies further as error the insufficiency of the evidence to sustain the verdict, and predicates error on this same insufficiency in the denial of a directed verdict and the denial of a new trial, and that because of such insufficiency the verdict must have been given under the influence of passion and prejudice.

As particulars of such insufficiency, he specifies that the contract required respondent to perform it in a manner satisfactory to appellant, and that the evidence is undisputed that such was not done, and that appellant's dissatisfaction was based upon reasonable grounds; that respondent had not been damaged in any sum because the evidence conclusively showed that the contract could not be performed for $11 per thousand feet, and that, when subsequently completed, the actual cost was $12 per thousand feet.

The contract obligated plaintiff to "log said timber satisfactorily to (defendant)," to "push the work just as fast as possible," and "to have all logs delivered by January 7, 1924." The defendant was to "advance. . . . sums of money as the work shall progress," and the contract provided that "time shall be of the essence of this contract." Plaintiff stated generally, in accordance with C. S., sec. 6712, that he had duly performed all conditions on his part, and "continued to prosecute work under said contract and in accordance with its terms and conditions at all times down to the twenty-second day of August, 1923," the date when it was taken over by defendant, and that he had "complied with all of the terms and conditions of said contract," and that he was then and thereafter "has at all times been ready, willing and able to prosecute work under said contract and to comply with all of the terms and conditions thereof, and to fully and completely perform said contract." These allegations of performance were denied by the defendant, and in addition, as an affirmative defense, there were specific instances of failure pleaded.

While it is true that a contract to perform such work satisfactorily to the defendant would require its performance only to satisfy a reasonable man, that is, a reasonable performance (Yarno v. Hedlund Box Lumber Co., 129 Wash. 457,225 P. 659, 227 P. 518; Gladding, McBean Co. v.Montgomery, 20 Cal. App. 276, 128 P. 790; Jackson Lumber Supply Co. v. Deaton, 209 Ky. 239, 272 S.W. 717; Boville v.Dalton Paper Mills, 86 Vt. 305, 85 A. 623), yet, as said inYarno v. Hedlund Box Lumber Co., supra, pertinent to the issues therein. "It was open to the appellant, of course, to contend that the respondent was not prosecuting the work efficiently and continuously. . . . ."

Likewise, in this case, it was open to defendant to contend that plaintiff did not "push the work as fast as possible" or perform it in a reasonably satisfactory manner, and the burden was upon plaintiff to "establish on the trial the facts showing such performance." (C. S., sec. 6712; Gerisch v. Herold,82 N.J.L. 605, Ann. Cas. 1913D, 627, 83 A. 892.)

Logging, such as was called for under this contract, is a business as to the methods of which experts are competent to testify, and which cannot be said to be within the common knowledge of jurymen upon which to draw entirely in support of their conclusions. It may be said that the plaintiff offered no proof that his performance of the contract was in accordance with approved methods, or reasonably satisfactory, or that it was performed in a manner to "push the work as fast as possible." While plaintiff introduced evidence of what he did in performance of his contract, he offered none as to his methods being in accord with usual methods adopted or such as should be reasonably satisfactory, and there was much evidence to the contrary.

At the time Taylor terminated the contract and took over the work, plaintiff had delivered 1,500 logs, approximately 100,000 feet, to the head of the chute and chuted them down. Of these, 180 logs had jumped the chute and landed in a ravine, where it would cost a considerable amount to remove them and deliver them in Steamboat Creek, where the contract called for delivery. Defendant had complained to plaintiff of his method of chuting large logs immediately behind small logs, by which the larger logs, moving more rapidly, ran upon the small logs and were thus caused to jump the chute. If these were average logs, this would establish that twelve per cent of this 100,000 feet jumped the chute. If large logs, as seems to be the case, the percentage was even greater. There was no testimony that this was a correct method or in accord with good methods, or an average of logs which would jump under such methods; and there was much proof to the contrary.

There was the evidence of competent witnesses that this jumping of logs was caused by a failure to properly chute the logs, and control the chute by placing fenders on the side where logs jumped and by putting in the chute anchors to retard the speed of the logs; and that an average breakage would not exceed two per cent, and that in this instance there was from two to eight per cent excess breakage due to these causes. The plaintiff offered no proof that his performance and delivery were by approved methods.

It is contended by plaintiff that, the contract having provided for its full performance by January 7, 1924, the verdict in his favor was a finding that he could have so performed it, and that the provision that he should "push the work just as fast as possible" is of no effect. All parts of the agreement must be given effect if possible, and so to hold would render meaningless this provision. The defendant had contracted to board the men and teams of plaintiff, and the evidence discloses that he was maintaining a cook outfit for this purpose at a cost of $150 per month. Plaintiff's own witness testified that the most efficient crew for performance of this contract would be approximately eight men and three teams. Plaintiff did not maintain such a crew, nor offer any evidence that such crew as he did maintain was such as to be reasonably efficient to push the work just as fast as possible; and in fact when the work was taken over by defendant, the crew consisted of not exceeding two men. The plaintiff admitted that, due to the muddy towpaths, he could not keep a crew; that upon the day when the work was taken over he had been absent three days seeking men, and returned with but one man. There was competent evidence that the towpaths were improperly constructed, and none by plaintiff to justify their method of construction.

Plaintiff contends that the chute was constructed by the defendant. It is true that the contract called for its construction, but the plaintiff made no claim that the chute was not proper. He accepted, approved of payment for, and operated, the chute. Defects in a chute, or corrections which must be made in it, may be discovered only upon operation; and good management and proper methods would require that the one operating the chute should take steps to correct these defects, such as, points at which logs might jump, or the speed at which they travel, rather than to operate the chute with reckless disregard of these faults, and then contend that such operation should be satisfactory to a reasonable person.

Competent loggers may disagree as to reasonable methods of logging, but in the face of evidence from three apparently well-qualified loggers as to the unreasonableness of various methods pursued by plaintiff, there is not a word of evidence produced by plaintiff to support the burden upon him of establishing that his methods were reasonable, or to prove performance which should be satisfactory to a reasonable man, in the face of facts admitted that logs jumped the chute, and of the evidence that such jumping was excessive, that there was an excessive breakage, and that the towpaths were so muddy that the men refused to work therein, and plaintiff was unable to maintain a crew.

The evidence was wholly insufficient to establish that the plaintiff had "duly performed all conditions on his part." The plaintiff wholly failed to support the burden upon him of establishing on the trial "the facts showing such performance." The evidence was insufficient to support the verdict. (Clarke v. Blackfoot Water Works, Ltd., 39 Idaho 304,238 P. 326.)

This renders it unnecessary to pass upon the further point raised, that the evidence was insufficient to establish any damages.

The judgment is reversed and a new trial ordered. Costs to appellant.

Budge and Givens, JJ., concur.