Arkansas Short Leaf Lumber Co. v. Hemler
281 F. 914
8th Cir.
1922
Check Treatment
CARLAND, Circuit Judge.

Thе parties for convenience will be designated as, they were in the trial court. Erom a judgment in favor of plaintiff in a suit to recover damages for the alleged breach by defendant of a contract whereby plaintiff agreed to sell and defendant agreed to buy 500,000 feet of No. 1 and 2 white oak, rеd oak, and ash logs within 30 days from date of contract, defendant brings error.

[1] The assignments of error specified and argued in the brief of counsel for defеndant will alone be considered; other assignments in the record being deemed abandoned.

[2, 3] It is first claimed that the verdict was excessive. This was a mattеr addressed to the discretion of the trial court, which denied a motion for a new trial, one of the grounds of which was that the verdict was excessive. Nеither in the assignments of error found in the record nor in the specifications of error found in the brief is there any complaint made of the ruling of the trial court in denying the motion for a new trial. It is true that there is an assignment that the verdict was excessive; but that question, even if properly raised, we may not reviеw. New York L. E. & W. R. Co. v. Winter, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71; Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224; Standard Oil Co. v. Brown, 218 U. S. 78, 30 Sup. Ct. 669, 54 L. Ed. 939; Herencia v. Guzman, 219 U. S. 44, 31 Sup. Ct. 135, 55 L. Ed. 81; Phœnix R. Co. v. Landis, 231 U. S. 578, 34 Sup. Ct. 179, 58 L. Ed. 377; Southern Ry.-Carolina Div. v. Bennett, 233 U. S. 80, 34 Sup. Ct. 566, 58 L. Ed. 1099.

[4, 5] It is next claimed that the trial court erred ‍‌​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​‌​‌‌​​‌​‌‌‌​​​​​‌‌‌‌​​​‌​‌‍in refusing to charge the jury as follows:

“If you find from the evidence that the only breach of the contract on the part of the defendant was a failure to pay for such logs as the plaintiff delivered at Mangam and Archibald of the kind called for by the contract, at the expiration of the first two-weeks period of the contract, and that thereafter the plaintiff did not deliver or attempt to deliver any more timber under the contract, then the measure of his damages would be the difference between the price defendant contractеd to pay him for said timber so offered to be delivered and the fair market value of the timber at the time and place plaintiff tendered it to defendant for delivery. If you find that plaintiff sold the timber for as much as, or more than, the contract price, he cannot recover.”

We do not think the cоurt erred in refusing this request. The contract between the parties provided that the logs should be delivered on the line of the Missouri Pacific Railway at сertain designated places. The evidence tended to show that plaintiff delivered at Mangham, La., 200,000 feet of logs, and 50,000 feet at Archibald, La., within the time specified in the contract, and that defendant refused to scale *917■and pay for the same. The requested instruction would confine the plaintiff tо the market price at the time and place of the refusal by defendant to scale and pay for the logs. The evidence tended to show that it was about two months after the refusal by defendant to take the logs that plaintiff found a purchaser. After the trial court had charged the jury, and had inquired of counsel for defendant if he had any exceptions to make to the charge, counsel claimed that there was no evidence that the mаrket price of the logs had fallen on June 26th, that being the time it was alleged that defendant had refused to scale and take the logs; therefore no damages could be recovered, the measure of damages being the difference between the market price and the contract price of the logs. In answer to the suggestion of counsel the trial court said:

“The court is bound to take judicial notice that you can’t sell a lot of lоgs at a small country station the same day. As the court instructed the jury, and I will repeat it again: If you find that on the ‍‌​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​‌​‌‌​​‌​‌‌‌​​​​​‌‌‌‌​​​‌​‌‍next day the defendant told him he wouldn’t take the logs, it was the duty of the plaintiff to exercise reasonable diligence to find a purchaser as soon as possible at the best price he cоuld obtain.”

We do not think plaintiff could be held to the exact date of the refusal by the defendant to take the logs in estimating his damages; he had the right, using reаsonable diligence, to find a purchaser. In the absence of other evidence as to the market price, the price obtained on the resale, immediately or within a reasonable time after the breach of the contract, might be regarded as the market price (35 Cyc. 597); the plaintiff, of course, using due diligence and making all reasonable efforts to obtain the best price (35 Cyc. 598).

[6] We think the requested charge was also erronеous for the reason that in effect it would cut off the plaintiff from recovering any damages for loss of profits by reason of the failure of defendant to perform the contract on his part. 17 C. J. § 172, pp. 157, 158.

“Where defendant breached a logging contract, plaintiff is entitled to recover the sum stipulаted for all timber cut, and, for timber which he was prevented from cutting, the difference between the contract price and the cost of cutting.” Langstаff-Orm Mfg. Co. v. Wilford, 160 Ky. 733, 170 S. W. 1; Pacific Bridge Co. v. Oregon Hassam Co., 67 Or. 576, 580, 134 Pac. 1184.

The same rule was enforced on the breach of a contract ‍‌​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​‌​‌‌​​‌​‌‌‌​​​​​‌‌‌‌​​​‌​‌‍for furnishing a quantity of staves. Hauser, Brenner & Faith Co. v. Tate et al., 105 Ky. 701, 49 S. W. 475; Danforth v. Tennessee & C. R. Co., 93 Ala. 614, 11 South. 60.

We do not think the case of Hаrris v. Faris-Kesl Const. Co., 13 Idaho, 211, 89 Pac. 760, cited by defendant, is applicable to the present case. Under the facts in that case, the court ruled that the plaintiff was not justified in abandoning the entire contract. The result of the breach in the present case made it impossible for the plaintiff to continue to perform.

The refusal to give instruction No. 3 was not error, for the same reasons stated in connection with No. 2. There is nothing in the case of Bartley v. New Orleans, 30 La. Ann. 264, that would sustain such a charge.

*918[7, 8] In regard to instruction No. 4, there does not seem to have been any testimony upon which to base this request. The evidence showed that the plaintiff’s equipment was seized after the refusal by the defendant to scale and take the logs, and plaintiff could do nothing. In other words, the testimony showed such facts as rendered it impossible for the plaintiff to further proceed with the contract. The refusal of the oral ‍‌​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​‌​‌‌​​‌​‌‌‌​​​​​‌‌‌‌​​​‌​‌‍request, made by counsel for defendant after the court hаd charged the jury, in regard to there being no evidence that the market price had fallen at the time of the alleged default of the defendant, wаs not error. The request left out of consideration the reasonable time to make a resale which has been heretofore referred tо. Moreover, it was not applicable to the facts of the case.

In regard to the instruction complained of in the seventh subdivision of defendаnt’s brief, there was no error in giving it, when the language of the charge which preceded this excerpt is considered. It is complained that the trial court erred in refusing to instruct the jury that the inability of Hemler to perform his contract, if he could not, was a good defense. There was no error in refusing this request for the ieason that there was no evidence upon which to base it. The evidence was that plaintiff was able and willing to perform the contract at the time of the breach by defendant; that he had SO teams there ready to perform the contract, and could have obtained more if neсessary.

[9] It is claimed that the court erred in his statement of the evidence as to what occurred at the office of one Cross. This testimony was all brought out at the trial without objection from counsel for tb'* defendant, and the court stated to the jury very plainly that, if their recollection differed from his, they shоuld follow their own understanding of it, and not that of the court.

[10] It is claimed that the testimony upon which the instruction was based was clearly inadmissible, but the record does not show that counsel for the defendant objected to it at the time.

Finding no error in the record, ‍‌​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​‌​‌‌​​‌​‌‌‌​​​​​‌‌‌‌​​​‌​‌‍the judgment below is affirmed.