281 F. 914 | 8th Cir. | 1922
The 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, red oak, and ash logs within 30 days from date of contract, defendant brings error.
“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 contracted 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 court 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 certain 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
“The court is bound to take judicial notice that you can’t sell a lot of logs 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 could 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 reasonable 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).
“Where defendant breached a logging contract, plaintiff is entitled to recover the sum stipulated for all timber cut, and, for timber which he was prevented from cutting, the difference between the contract price and the cost of cutting.” Langstaff-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 Harris 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.
In regard to the instruction complained of in the seventh subdivision of defendant’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 necessary.
Finding no error in the record, the judgment below is affirmed.