151 Ky. 404 | Ky. Ct. App. | 1913
Opinion op the Court by
Reversing.
Appellee sued appellant in the court below upon an account for $350.00, which amount was the contract price of a thirty-five horse power engine sold and delivered to the latter on board the cars at Cincinnati, Ohio, for use in its 'business of manufacturing staves; and for the further sum of $18.50 expended iby appellee in paying the freight charges on the engine from Cincinnati, Ohio, to appellant’s place of business in Whitley County, this State.
Appellant filed an answer and counterclaim wherein the purchase by it of the engine at the price named was admitted, and its indebtedness -therefor, as well as for the further sum .of $18.50 .freight charges, acknowledged, bnt alleged that the engine was purchased of appellee on March 2nd, 1911, with a definite understanding on the -part of appellant, and promise- on the part of appellee, that it would be delivered by the latter on (board the cars at Cincinnati, Ohio, March 5, 1911, for immediate transportation to appellee’s place -of business in Whitley County, this State; that appellee, however, failed to comply with its promise to deliver the engine on board of the cars March 5th, and did not, in fact, deliver it until March 20th, 1911; and that during this delay of fifteen days appellant was unable to carry on its business ¡of manufacturing staves, because of the absence of the engine, and by reason thereof was. damaged $1,096.50.
The damages claimed consisted, as alleged, of the deterioration in value of the -.stave timber, which appellant had on ¡hand -at its manufacturing plant, from its exposure to the weather during the fifteen days’ delay
The answer and counterclaim also contains the further -averments that appellant was unable to carry -on its business of manufacturing staves without the engine purchased by it of appellee; that it was unable to procure another engine to take its place; that in response to its frequent requests to appellee to forward the engine it would promise to do so, but failed to comply with such promises and did no-t, in fact, do .so until appellant had sustained á loss of fifteen day-s time from .its business.
Appellee filed a demurrer to the answer and counterclaim, which the Circuit Court sustained, and appellant refusing to plead further, judgment was entered in appellee’s favor for the price of the engine and freight charges and dismissing the counterclaim. From that judgment this appeal is prosecuted.
"We infer from statements -contained in the briefs of counsel that the demurrer to the answer and counterclaim was sustained upon the ground that the acceptance of the engine by the appellant, after the time fixed by the contract between the parties for its delivery, constituted a waiver of .its right to claim or recover damages because of the delay in its delivery. In view of the averments of the answer and counter-claim we cannot concur in this conclusion. Taking as true the averments of the answer, which should be done in passing upon the demurrer, we must conclude, that the time fixed for the delivery of the engine ¡by appellee at the time of its sale to appellant, was of the essence of the contract and, this being true, the delay of fifteen days in its delivery, unexplained by anything appearing in the record, constituted a breach of the contract on the part of the appellee, which entitled appellant to recover such damages as may, have directly resulted to it therefrom. The rule applicable to the -state of case here presented is well stated in the opinion in Fairbanks, Morse & Co., v. Hooper, 147 Ky., 154, wherein quoting from Hadley v. Baxendale, 9 Exchequer Reports, 341, it is said:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract
In American Bridge Company of New York v. Glenmore Distillery Co., 32 R., 873, we held that Where it was shown by the evidence, and from the nature of the contract, that a loss of -profits in the operation of a distillery was in the contemplation of the parties in fixing the time for the completion of a tower necessary for the operation of the distillery, such profits might be recovered by the distillery company, by reason of the delay of the contractor to complete the work within the time agreed -on in the contract. 'The opinion quotes with approval the rule announced in Hadley v. Baxendale, eupra, and declares it has never been successfully questioned.- It will -also be found that the rule has been enforced in the following cases: Bates Mch. Co. v. Norton Iron Works, 113 Ky., 372; Blue Grass Cord Co. v. Luthy & Co., 98 Ky., 583; Newmarket Co. v. Embry & Co., 20 R., 1130; Denhard v. Hurst & Rogers, 23 R., 790; Tradewater Coal Co. v. Lee, 24 R., 215; Owensboro-Harrison Tel. Co. v. Wisdom, 23 R., 97; Sedgwick on Damages, sections 144 to 153, inclusive; Ill. Cent. R. R. Co. v. Nelson, 139 Ky., 449.
It is apparent from the averments of the answer
Casesi may be found, a few of them in this jurisdiction, but the greater number in other jurisdictions, which hold that the acceptance by the purchaser of goods or machinery after the time fixed by the contract for its delivery, constitutes .a waiver of any cause of action for damages the purchaser might have maintained for the seller’s breach of the contract, had he refused to receive the property and ,sned for breach of contract, hut examination of these cases will show that the circumstances attending the delivery of the article sold were such as to establish the waiver. In the case under consideration, however, the circumstances' are wholly different, for the facts alleged in the answer and counterclaim charge that appellee sold the engine for specific and immediate use; that delivery thereof was to be made within three days of the date of the sale, and that the failure to deliver the engine at the time indicated would obstruct appellant’s business and cause it loss and damage.
If the above facts alleged in the answer and counterclaim are made to appear in evidence they will entitle appellant to some part of the damages claimed by it. 'So in the case here presented by the pleadings appellant by accepting the engine after the delay in its delivery, did not waive the right to assert by counterclaim its claim to the damages resulting from its delayed delivery. It therefore follows that the Circuit Court erred in sustaining the demurrer to the answer and counterclaim, and also in rendering the judgment complained of.
For the reasons indicated the judgment is reversed