246 P. 74 | Cal. Ct. App. | 1926
Action by plaintiff to recover the sum of $2.500 as damages for failure of the defendant to receive and pay for 65,000 board feet of lumber. Plaintiff had judgment for the sum of $1,400. Defendant appeals. The complaint, among other things, alleges as follows:
"That during the year 1923 plaintiff and defendant made and entered into a contract or agreement as follows: defendant ordered from plaintiff 130,000 (One hundred and thirty thousand) board feet of lumber, to be into such sizes and lengths as defendant might desire, and defendant agreed to pay for the same at the rate of $35.00 per thousand feet, and to be delivered at the mill of plaintiff. Plaintiff accepted said order as aforesaid.
"That plaintiff immediately thereafter proceeded to saw and cut said lumber, and defendant proceeded to take delivery of the same and hauled away from said mill 65,000 board feet of lumber.
"That defendant has failed, neglected and refused, and still refuses to take delivery of the balance of said lumber so ordered by him, to-wit, 65,000 board feet, and has failed, neglected, and refused and still refuses to pay plaintiff for the balance of said lumber so ordered by it.
"That by reason of the aforesaid acts of said defendant, plaintiff has been damaged in the sum of Two Thousand five hundred ($2500.00) Dollars, and neither said sum or any part thereof has been paid."
To this complaint the defendant interposed a demurrer worded as follows:
"That said complaint does not state facts sufficient to constitute a cause of action, and especially and particularly in this: (1) That the alleged executory contract or agreement is insufficient and indefinite as to the kind, character or quality of lumber to be cut, or the dimensions thereof; (2) That it does not state whether or not the balance of the lumber, to wit, 65,000 feet, was cut.
"That said complaint is uncertain, for the reasons and upon the grounds hereinbefore assigned, and in addition thereto as follows: (1) That it cannot be determined therefrom what is meant or intended by the allegation in paragraph `11' `to be into such lengths and sizes as defendant might desire'; (2) That it cannot be ascertained or determined *770 therefrom whether the alleged refusal of defendant to accept the balance of the lumber was before or after the same had been cut; (3) That said complaint is indefinite as to whether plaintiff relies upon the alleged contract, or its alleged breach."
The defendant's demurrer being overruled, an answer was filed in which the defendant, after making denials, for further defense alleged as follows:
"That in the year 1923, said plaintiff and this defendant entered into a mutual agreement whereby the former agreed to manufacture and deliver at his mill, in said county and state, and defendant agreed to accept and pay therefor at the rate of thirty-five dollars per thousand board feet, all necessary and suitable building lumber for the erection and construction of certain buildings, then in contemplation, and about to be constructed and erected by defendant, upon its mining properties nearby the mill and plant of the plaintiff; that there was no agreement or understanding either as to the amount that would be required for such construction, or that the plaintiff would manufacture or defendant receive, accept, and pay for, other than plaintiff would manufacture and deliver at his mill, as aforesaid, necessary and suitable lumber for the construction and erection of such buildings."
By reference to the allegations of the complaint and the paragraph of the defendant's answer herein set forth, it will be seen that the only issues between the parties is as to the number of feet of lumber ordered, the refusal of the defendant to accept and pay for all of the lumber, and the amount of damages.
[1] Under the circumstances pertaining to this case the vendor of the lumber would ordinarily have three remedies: 1. Standing strictly upon the sale, retain the property for the vendee and sue the vendee for the purchase price; 2. Acting as agent of the vendee, the vendor might sell the property and then sue to recover the difference between the contract price and the price obtained on a resale; 3. The vendor might treat and keep the property as his own and recover from the vendee the difference between the contract price and the market price at the time and place of delivery. (Cuthill v. Peabody,
Section 3311 of the Civil Code provides: "The detriment caused by the breach of a buyer's agreement to accept and *771 pay for personal property, the title to which is not vested in him, is deemed to be: 1. If the property has been resold, pursuant to section three thousand and forty-nine, the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the resale; or, 2. If the property has not been resold in the manner prescribed by section three thousand and forty-nine, the excess, if any, of the amount due from the buyer, under the contract, over the value to the seller, together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it."
And in estimating damages under such circumstances the rule for ascertaining the same is set forth in section
[2] The complaint is by no means a model, but the demurrer, as a pleading, shows no improvement. The objection argued that the complaint does not distinctly show the remedy sought by the plaintiff is very well answered in the case of Lillie v.Weyl-Zuckerman Co.,
"Q. Referring to the sizes that you cut there, Mr. Burner — A. The sizes — Q. Were they commercial sizes? A. No. Q. Cut especially for this yard? A. Especially for flume lumber. Q. Did that lumber have any market value? A. It did not, practically no value for market. Q. You tried subsequently to sell it? A. I did — tried and in fact tried in every way to dispose of it. Q. You did dispose of some of it? A. Yes, sir — one thousand feet, here and there. A. And approximately how much did you dispose of? A. I disposed of somewhere around thirty-five thousand feet. Q. And what was the average price for that? A. Twenty-five dollars was the best I could get for it"; also, *773
"Q. With whom was the contract made for the hundred and thirty thousand feet, and where? A. It was a verbal agreement. Mr. Wilson wanted at least one hundred thousand feet to start with, and Mr. Duffey said they would want at least thirty thousand feet of building material. . . . A. The bigger part of the Mining Company ordered was red fir, which is not marketable, very hard to dispose of red fir to anyone who is not building flumes. The lumber yards refused to buy it."
No question appears to have been raised by the testimony as to the fact that the plaintiff had sawed and had on hand ready for delivery the 65,000 board feet of lumber ready for defendant, nor is there any question raised as to the market value, or of the fact of there being no market value of the lumber not accepted and paid for by the defendant. [4] There is some question as to the amount of lumber ordered, whether 100,000 feet or 130,000 board feet, but as there is sufficient testimony to support the verdict of the jury that 130,000 board feet of lumber were ordered, we must accept the verdict of the jury as conclusive upon this point. The appellant has argued at considerable length that as the plaintiff was unable to sell 35,000 board feet of the lumber in question for an average price of $25 per thousand feet, that such price was thereby fixed as the market value of the unsold lumber. This, however, overlooks the fact that the lumber was cut for a specific purpose, was cut in a country where the market for such lumber is limited, and if not accepted and paid for by the person creating the limited market, it would practically have no market value. It might have a value for special use, if anyone could be found having use for such lumber, but it does not appear from the testimony that any such facts existed. The fact of there being no market value for the lumber, as testified to by the plaintiff, was left entirely uncontroverted by the defendant, or, at least, our attention has not been called to any testimony contravening the fact of the unaccepted lumber having no market value. The evidence showing that the 65,000 feet of lumber was sawed, that the defendant had notified the plaintiff that the same would not be received, and as the cause was tried upon issues which involved the real merits of the case, we think this is an instance where the provisions of section 4 1/2 of article VI of the state constitution apply, *774
where it is said that no judgment shall be set aside or new trial granted for any error as to any matter of pleading, etc., which has not resulted in a miscarriage of justice. The issues tried out in this case and determined by the jury and the real merits involved in the controversy between the plaintiff and defendant would not have been affected or altered in any particular had all the technical allegations insisted upon by the appellant as necessary to constitute a sufficient complaint been inserted therein. The case of Donlon v. Meyer,
The judgment of the trial court is affirmed.
Pullen, J., pro tem., and Finch, P.J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 5, 1926.