251 F. 1 | 6th Cir. | 1918
Judge Cochran sustained an equitable lien in favor of the plaintiffs on lumber, on which they had made certain advancements to the defendant, and awarded damages to the defendant for their breach of contract. Plaintiffs appealed, because the net result was a judgment against them; the defendant, because he was not awarded a larger sum.
Both parties proceeded under the contract without further. complaint until February 27, 1914. In December a decline began in the lumber market and continued many months thereafter, the embarrassing effect of which is mentioned in plaintiffs’ letter of January 22, in which, however, they expressed their purpose to carry the contract to completion. On February 27, they reverted to the Cincinnati conversation and charged the defendant with nonperformance, in that lumber of the lengths of 14 and 16 feet was rarely received, and that nearly all of it was only one inch thick. They informed the defendant that they did not intend to confine him absolutely to the saw bill claimed to have been furnished him at the Cincinnati conference, but informed him that:
“It is necessary that you do a good deal Better than has so far developed. In making purchases of stock from other parties for our account, we wish to caution you to have these two essentials in view.”
They did not assert that he had not complied with his contract as to the lengths and thickness of the lumber, all of which had been accepted by and paid for by them, but demanded that he should conform closely to the saw bill, whether his so doing was detrimental to him or not. About that time the defendant asked the plaintiffs for an advance on certain lumber, as he was authorized to do by his contract, and requested them to send a man to inspect and receive it. They answered, demanding its lengths and thickness, to which the defendant replied, insisting on the inspection and advance, which he greatly needed on account of his shortage of funds, and disclaimed his ability to give the percentage of lengths and thicknesses of the particular lumber whose inspection was demanded (doubtless due to its being in mill yards other than his own), and further declared that lie had at all limes complied with his contract. The plaintiffs sent no inspector and declined to make the requested advancements. This constituted a breach of their contract; and by demanding that the defendant must, not absolutely, but as far as possible, conform to their alleged saw bill, whether it was detrimental or not for him to do so, they repudiated an important provision in the agreement and sought to substitute for it another favorable to themselves and severe on the defendant. Following the letter of February 27, there was in
“We will make no more advances on your stock that does not conform, ar least approximately, to the saw bill that was rendered you at the time [the] signed. contract was delivered.”
This was clearly a repudiation of its detriment clause. We do not find that the defendant breached his agreement. There was not and never had been any inducement for a refusal on his part to saw the lumber of greater thicknesses and lengths. By so sawing it he would have economized in the cost of production and obtained a higher price than he had been receiving. The difficulty lay in the fact that tire timber at his command was such as would not yield lumber other than such as he had been furnishing. To meet the requirements of the plaintiffs’ saw bill would result in wastage and be detrimental to him. The evidence tends to show that the sawyers were furnished with plaintiffs’ saw bill, and that they used reasonable effort, not detrimental to the defendant, to conform to it.
To prevent the defendant from selling the lumber on which advancements had been made, plaintiffs filed a bill asserting an equitable lien on the same, for more than $3,200, charged a breach of the contract on the part of the defendant, and prayed for an injunction against his disposition of the lumber and for other relief. By amendment to the bill damages were claimed for breach of contract, but this claim was evidently waived, as no evidence was offered in proof of it. The defendant answered, denying breach of the contract, and counterclaimed for damages. The trial court, after a deduction to which the defendant was entitled, found in favor of plaintiffs, on account of their advancements to defendant, for $3,028.10, awarded the defendant damages for $5,839.58, and entered judgment in his favor for $2,811.48. We find no error in its so doing. The defendant’s claim for damages is extravagant, being for more than $28,000. He had delivered at the time of the breach over 800,000 feet of lumber. He endeavored to show that, had the contract been completed, he could and would have furnished several times that amount. Both parties concede that 2,000,000 feet were to be furnished, the difference between them being tire defendant’s claim of- right under the contract to deliver more. The trial judge concluded, and we think rightly, that the evidence relating to damages claimed on lumber in excess of 2,000,000 feet was not of sufficient certainty or dignity to warrant a recovery, and that damages should be allowed on such only as represents the difference between what had been furnished and the 2,000,-000 feet.
The judgment of the District Court is affirmed.