Austin & McCargar v. Langlois

83 Vt. 104 | Vt. | 1909

Watson, J.

By the contract declared upon the defendant sold his hay to the plaintiffs on September 18, 1906, for the price of ten dollars per ton, which hay was to be pressed by the defendant after October 1, 1906, at the rate of one dollar and fifty cents per ton, and to be delivered by the defendant to the plaintiffs immediately thereafter as they might direct, on board the cars at Alburg, or on board a boat at Isle La Motte, and to be paid for on such delivery. On the 23rd day of September the plaintiffs paid to the defendant the sum of fifty dollars, and on the 12th day of October one hundred five and 25/100 dollars, to be applied on the purchase price of the hay and the price of pressing it. It is further alleged that the defendant has retained said sums of money, and did not nor would within the time aforesaid, or at any time afterwards, though often specially requested so to do, press and deliver said hay or any part thereof for the plaintiffs at the place named, but wholly neglected and refused so to do. The second count alleges a similar request made by the plaintiffs on or about January 4, 1907. General damages only are alleged.

The plaintiffs claim, the right to recover special damages under the averment that they “have lost and been deprived of divers great gains and profits which might and otherwise would have arisen and accrued to them from the delivery of the said hay to the said plaintiffs as aforesaid, to wit, the sum of,” etc. But this averment is insufficient in the absence of any allegation showing for what purpose the hay was purchased by the plaintiffs, and in what way the loss of profits was the natural consequence of the act complained of. To permit evidence at the trial of such damages arising from the breach of contract it is necessary to state them specially and circumstantially in order to apprize the defendant of the facts intended to be proved. 1 Chit. PI. *338.

Neither the paper marked exhibit A nor a copy thereof is before us as a part of the exceptions, hence we cannot say that its admission in evidence was error. Royce v. Carpenter, 80 Vt. 37, 66 Atl. 888.

The letter of January 3, 1907, written at the dictation of the defendant and sent to the plaintiff McCargar offered in evidence by the defendant was properly excluded as self serving.

The jury found the contract as the plaintiffs had alleged and as their evidence tended to show it was, by which the hay was to be pressed and delivered by the defendant after October 1, 1906. The plaintiffs’ evidence further tended to show that they called upon the defendant in the month of October to press and deliver the hay; that he put them off on the ground that he was not able to procure the help necessary to do the pressing; that the plaintiffs again called on him the 5th day of January, 1907, to press and deliver the hay, at which time he told them he was not going to press it at all and that they might get whom they pleased to press it; and that on the 29th day of the same month the defendant refused to press or deliver the hay to the plaintiffs, or to allow them to press it.

Under the contract alleged and proved the defendant was obliged to press and deliver the hay on demand after October 1, 1906; and the verdict has established, as the plaintiffs’ evidence tended to show, that they called upon him to do so in that month. The declaration contains no allegation that the contract was enlarged or altered as to the time of delivery. The damages recoverable for the breach of the contract should therefore have been assessed with reference to the time of such demand in the month of October and the noncompliance therewith. Hill v. Smith & Carpenter, 32 Vt. 433.

Subject to exception, as bearing on the question of damages the plaintiffs were allowed to show that the market price of such hay as they claimed to have bought of the defendant was twenty-two to twenty-three dollars per ton in May and June, 1907. This was harmful error. When there has been an advance in price as in this instance, the well established rule is that the only general damages recoverable by a vendee of personal property for failure to deliver it according to the terms of the contract, whether the price be paid or not, is the difference between the contract price and the market price of the article at the stipulated time and place of delivery, together with the money paid towards the price if any. Copper Co. v. Copper Mining Co., 33 Vt. 92; Worthen v. Wilmot, 30 Vt. 555; Hill v. Smith & Carpenter, cited above.

It is argued, however, that if the admission of this evidence was error it was harmless, for the record shows that the jury disregarded it. But as we are unable to arrive at the same result in damages by any computation on a legitimate basis, the position of the'plaintiffs in this respect is not sustained.

Since the one error found upon the record has reference to the question of damages only, a reversal limited accordingly is all that justice to the defendant requires. Marshall v. Dalton Paper Mills, 82 Vt. 489, 74 Atl. 108.

Judgment affirmed except as to the question of damages, and as to that question judgment is reversed and cause remanded.