167 Ky. 335 | Ky. Ct. App. | 1915
Opinion of the Court by
Affirming.
In this action by plaintiffs, L. F. Kinner and Pred Kinner, against defendants, O. P. L. Beckette, M. W. Thomas, and J. A. Meredith, partners doing business under the firm name of Ashland Lumber Company, for damages for breach of a logging contract, plaintiffs recovered a verdict and judgment in the sum of $3,000.00. Defendants appeal.
Briefly stated, the facts are as follows: On December 1st, 1906, defendants entered into a contract with L. P. Kinner, by which Kinner agreed to care for, raft and deliver to defendants “all their timber branded A. L. Co., coming out of Blaine, a tributary of the Big • Sandy River in Lawrence county, Kentucky.” Plaintiff was to keep the boom lined up in a safe condition, so as to prevent the_ logs belonging to defendants from going out into the river, either by the breaking of the boom or its breaking loose from its mooring through any negli.genee of the plaintiff. Plaintiff agreed to take charge of .said logs when delivered to the boom, and raft, oar and line them in good condition and deliver them to the .agent of the defendants at the mouth of Blaine, securely tied, and to hold them until accepted by the defendants. He also agreed to furnish the tie poles, splices and oars, and do all the necessary labor in holding the boom and
When the contract was executed defendants were engaged in buying timber on Blaine Greek. This timber they desired transferred to their mills in Ashland. Plaintiffs continued to work under the contract until some time in the fall of 1907, when, according to plaintiffs ’ evidence, the defendants took the contract away from them and turned the job over to others. At that time plaintiffs were ready, willing and able to carry out their contract. Had they continued their work they could have made about 15 cents per log profit on the logs, and from 20,000 to 30,000 logs were rafted by defendants after the contract was breached. While some of the logs escaped from the boom and were caught by other parties, plaintiffs and other witnesses testify that it is impossible to construct and maintain a boom that will prevent some logs from getting away, and that during the time plaintiffs were operating under the contract they complied therewith in every substantial particular.
Defendants and other witnesses testify that plaintiffs suffered more logs to escape from the boom than the circumstances justified and that the contract was taken away from plaintiffs because of plaintiffs ’ failure to comply therewith. They also interposed a counterclaim, based on the additional expense rendered necessary by the carelessness of plaintiffs in allowing too large a per cent: of the logs to escape from the boom. In addition to this, they claim that plaintiffs were paid the sum of $98.31 in full settlement of all claims which they had against defendants.
It is first insisted that defendants had a right to terminate the contract because plaintiffs were jeopardizing the interest of defendants by failure to comply with the terms of the contract. While this contention is supported by some evidence, the weight of the evidence, we' think, is to the effect that plaintiffs substantially complied with their contract. In view of the conflicting character of the evidence, the question was certainly for the jury.
There is no merit in the contention that it is conclusively shown that the sum of $98.31 was paid in full. settlement of all claims which plaintiffs had against defendants. Plaintiffs’ evidence is to the effect that they had rendered defendants a statement for work done during the months of June and July, and that the account thus rendered was paid by the check in question. Even the evidence for defendants fails to uphold their contention. It is clear, therefore, that the finding of the jury is not only not flagrantly against the evidence, but is supported by the decided weight of the evidence.
The point that the contract was terminable at will, and the alleged error of the trial court in refusing an instruction, limiting plaintiffs’ recovery to the profit which they would have made on the logs which defendants actually owned when the contract was executed, will be considered together. By the contract in question plaintiffs obligated themselves to care for, raft and deliver to defendants ‘ ‘ all their timber branded A. L. Co. coming out of Blaine, a tributary of the Big Sandy River in Lawrence county, Kentucky.” In interpreting a con
The petition is not demurrable because it fails to allege that after the breach of the contract sued on plaintiffs used due diligence to get other employment but failed to do so. This is not a case of master and servant or principal and agent, based on a breach of a contract for personal services. It is a breach of an ordinary contract where no such relation exists, and where plaintiffs had the right to do. the work themselves or employ
Judgment affirmed.