Tripp v. Forsaith MacHine Co.

The filing of a bill in equity for the reformation of the contract was properly allowed by the referee. P.S., c. 222, s. 8; Ib., c. 227, s. 10; Metcalf v. Gilmore, 59 N.H. 417; Brooks v. Howison, 63 N.H. 382; Howard v. Britton, 67 N.H. 484, 488. It being found that the plaintiffs fully performed their part of the contract, it is immaterial whether the defendants' refusal to perform their part was occasioned by a decline in the market value of clapboards or by some other cause. The quotation of prices of clapboards in the newspaper and the defendants' letter to Ward related to an immaterial issue, and the rulings as to their admission in evidence furnish no ground for setting aside the report. Neither party was prejudiced by the exclusion of the evidence in the one case, or by its reception in the other.

There was error in the assessment of damages other than in the figuring. The plaintiffs were entitled to recover the difference between the contract price of the clapboards and their market value at the time when the defendants refused to accept them, i. e., on or about February 1, 1894. The price obtained at the auction sale was evidence of their value at that time and also of their value February 1, 1894, although not conclusive. On what ground the referee deducted from this price the interest thereon ($114.87) from February 1, 1894, to the date of the auction, is not apparent. There is no presumption that the value increased at the rate of six per cent per annum, and unless there was evidence tending to show that it did, the deduction was erroneous.

Upon the defendants' refusal to accept the clapboards, the plaintiffs were at liberty to dispose of them, and became entitled to damages for the breach of the contract. The plaintiffs could not by any acts of theirs enhance the damages. They kept the clapboards after that at their own risk and cost. Had the clapboards been destroyed by fire, the loss would have been theirs and not the defendants'. They cannot charge the defendants with the storage of their own goods, nor with the taxes upon them. Neither are the defendants chargeable with the expense of the auction sale as such. It must be deducted from the gross proceeds in order to obtain the net auction price; but that is quite another and different thing in principle.

Assuming that the market value of the clapboards was the sum which they brought at the auction sale, the plaintiffs' damages would be as follows:

Contract price of the clapboards not taken by the defendants . . . . . . . $1,834.09 Less market value as shown by sale. . . . 1,307.98 --------- $526.11 Interest due on notes (not questioned) . . . 43.83 --------- $569.94

To which interest should be added from February 1, 1894, to the date of judgment. The plaintiffs may, if they so elect, have judgment on the report accordingly. Otherwise, the report must be set aside on the question of damages only.

Case discharged.

All concurred.