Bussard v. Hibler, 71 P. 642

Bussard v. Hibler

71 P. 642 | Or. | 1903

Mr. Chief Justice Moore,

after stating the facts, delivered the opinion of the court.

It is contended by plaintiff’s counsel that the testimony introduced by them at the trial, together with the inferences and presumptions fairly deducible therefrom, having tended to establish the material allegations of the complaint, the court erred in not submitting the questions involved to the jury for their determination. It is maintained by defendant’s counsel, however, that the complaint contains no averment that plaintiff suffered any special damage by reason of a breach of the alleged agreement, or that they entered into a contract with defendant for the purpose of reselling the mohair for a profit, nor was there any testimony offered at the trial upon these questions; that there is no sufficient averment in the complaint. *503nor was there any proof offered, that they were able, ready or willing to perform their part of the agreement, and that the evidence fails to show a sufficient demand made by them upon defendant to deliver the remainder of the mohair, under the terms of the contract, or that they ever tendered to him the sum of money due therefor; and that for these reasons no error was committed as alleged.

1. Considering first the legal principles insisted upon by defendant’s'counsel, the rule is universal that, under an allegation of pecuniary injury, a party may recover, as general damages, the quantum of loss that is necessarily and inevitably sustained through the act of which he complains: Wisner v. Barber, 10 Or. 342; Sunnyside Land Co. v. Willamette Bridge Ry. Co. 20 Or. 544 (26 Pac. 835); Dose v. Tooze, 37 Or. 13 (60 Pac. 380). In Griffin v. Colver, 16 N. Y. 489 (69 Am. Dec. 718, and note), it was held that a party injured by a breach of a contract is entitled to recover all his losses sustained thereby, provided they are certain, and such as might naturally be expected to follow the breach. In Messmore v. New York S. & Lead Co. 40 N. Y. 422, it was held that the damages recoverable upon a breach of contract include gains prevented as well as losses sustained, provided the gains are certain, and such as would naturally have resulted from a performance of the agreement. In Peters v. Cooper, 95 Mich. 191 (54 N. W. 694), it was held by the Supreme Court of Michigan that losses sustained by the depreciation in the price of cattle and the expense of keeping them, occasioned by a breach of an agreement to accept- them, being general damages, the facts constituting such depreciation and expense need not be specially alleged in the complaint. In Johnson v. Gilmore, 6 S. D. 276 (60 N. W. 1070), it was held by the Supreme Court of South Dakota that a complaint which states a contract, shows a breach, and alleges damages directly resulting therefrom, states a cause of action, without showing in what particular manner such damages occurred. The damages sought to be recovered in the case at bar are such as would inevitably result from a breach of the agreement, and, being general, no neces*504sity existed for alleging any special damages, such as that the purchases were made for resale. If plaintiffs desired the mohair for their own use, they would necessarily sustain damage by reason of defendant’s failure to deliver it to them; and, so far as it appears from an inspection of the complaint, they may have negotiated the purchase for their own benefit. In any event, they do not seek to recover such damages as would ensue if they had a contract for the resale of the commodity to a particular person; and, this being so, the complaint is sufficient to sustain a judgment for general damages.

2. It is alleged in the complaint that, at the time and place appointed by the terms of the contract, “plaintiffs were willing and ready to receive and pay for” the mohair agreed to be delivered, and such averment is.sufficient to show a readiness on the part of the plaintiffs to keep and perform their part of the agreement: Smith v. Lewis, 26 Conn. 110. The contract, according to plaintiffs’ theory, required the payment of the remainder due on the purchase of the mohair upon its delivery at Albany ^ within the time specified, and, until defendant offered to deliver it in accordance therewith, no money was due, and no tender thereof was necessary: Lewis v. Craft, 39 Or. 305 (64 Pac. 809).

3. The defendant, as a witness in his own behalf, testified that during the mohair season of 1902 he purchased at Scio, Oregon, 6,069 pounds of Angora goats’ wool, and that at the close of the reason he delivered 1,633 pounds of it to the plaintiffs at Albany, Oregon, and sold the remainder to one Metzker. The defendant having disabled himself from performing his part of the contract, no demand by plaintiffs that he should comply with his agreement was necessary: Hawley v. Keeler, 53 N. Y. 114.

We do not deem it necessary to quote from or comment upon the testimony given by plaintiff^’ witnesses; but believing it sufficient, as tending fairly to support the material allegations of the complaint, an error, in our opinion,- was committed in granting, the nonsuit, and hence the judgment is reversed, and the cause remanded for a new trial. Reversed.