81 Mo. App. 84 | Mo. Ct. App. | 1899
The defendant wholly neglected to ship the said twenty-, five horse power engine. This action was brought to recover damages resulting from the breach of said contract.
Plaintiffs further allege that even though they did haul and grind their grain, as aforesaid, the amount that they could grind was insufficient to properly feed their said cattle, and was not as large an amount as they could have ground had they had the engine which defendant agreed to furnish on the eleventh day of April, 1895; that the grain so ground by the plaintiffs was not adequate to properly feed said cattle, and owing to the failure, neglect and refusal of the defendant to furnish the said engine at the time agreed upon, the plaintiffs were compelled to buy, and did buy, for the purpose of feeding said cattle, cotton seed meal to the amount of. four hundred and thirty-seven dollars ($137), which expenditure for cotton seed meal they were compelled to make, and did make, by reason of the negligence, failure and refusal of the defendant to comply with his contract as above set out; that as to the necessity of the plaintiffs having to make such expenditure for cotton seed meal, the defendant was fully informed at the time be entered into said contract in the, event that he did not carry it out; whereby plaintiffs were damaged in the further sum of $137.
The plaintiffs further allege that owing to the negligence, failure and refusal of the defendant to furnish the said engine at the time promised to furnish the same, they were damaged in this, that their cattle shrunk or fell off in weight and were
At the time the defendant entered into the contract he was informed and knew that plaintiffs intended to feed two hundred and twenty head of cattle on the grain to be ground by the engine which the defendant agreed to furnish on the eleventh day of April, 1895. That owing to the neglect, failure and refusal of the defendant to furnish the said engine, the plaintiffs were able to fit only one hundred and eighty head of the said cattle by means of their primitive method of grinding grain by horse-power; that the .plaintiffs still have on hand forty head of said cattle which are not yet ready for the market, but have been fed a large amount of grain, which is now all lost to the plaintiffs; that had defendant furnished the said engine at the time he agreed to furnish the said engine to the plaintiffs, the plaintiffs would have been able to have fitted their said cattle for the market; but by reason of said failure, neglect, and refusal of the defendant to furnish the said engine at the time agreed upon, plaintiffs were damaged to the amount of $8 a head on the one hundred and eighty head of cattle which they sold, to wit: fourteen hundred and forty dollars .($1,440), and were damaged to the amount of $9 a head on the forty head of cattle which they have not sold, to wit: three hundred and sixty ($360), all to the damage of the plaintiffs in the sum of $1,800.
Wherefore, the plaintiffs pray judgment against the defendant in the full sum of thirty-two hundred and seventy-seven dollars ($3,277) and the costs of this action.
The answer was a general denial. There was a trial resulting in a verdict for plaintiffs for $1,500. The plaintiffs
The evidence disclosed by the record tends to prove that there was a market for gasoline engines. The defendant himself testified that at the date he had agreed to deliver said engine to the plaintiffs he had one of that kind in stock. Besides this, another dealer in such engines at Kansas City testified that he kept them in stock in the rough and furnished them on orders. Defendant further testified that an engine like that which he agreed to ship plaintiffs was, at the date he agreed to make the shipment of the same, of the, value of $1,000 in Kansas City. This evidence tended to show not only a market for such engines but the value thereof in such market. It does not clearly appear from the evidence what, if any, the value of the fifteen-horse power engine was. "Where a vendor fails to comply with his contract the lawful measure of damages is the difference between the contract and the market price of the article at the time of the breach.
There is an abundance of evidence tending to prove the facts embraced in the hypotheses of the part of the plaintiffs’ instruction just quoted. It is also a well settled rule that where a party sustains a loss by reason of a breach of contract he shall, so far as money can do it, be placed in as good a situation by recovery of damages as if the contract had been performed. Shouse v. Neiswaanger, 18 Mo. App. loc. cit. 244. In consequence of the failure of the, defendant to deliver the engine the plaintiffs were unable'to grind the needful feed for their cattle,wherebytheywere subjected to damage; and there
In Griffin v. Colver, 16 N. Y. 494, it is said: “The broad general rule * * * is that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and this rule is subject to but two conditions. The damages must be such as may fairly be supposed to have entered into the contemplation of ' the parties
The bill of exceptions discloses evidence which' tends to prove that before the time the defendant entered into the contract he had visited "Woodlawn and inspected the plaintiffs’ mill. He knew its capacity and the purpose for which it was operated. He saw plaintiffs’ cattle and was fully informed by the latter of their method of feeding their cattle. He knew that such cattle were being prepared for market and that they were to be fed. on corn meal. He was informed that without the power which was to be afforded by the engine which he had agreed to furnish, the mill would not grind the quantity of feed needed to economically feed plaintiffs’ cattle. He was informed that when corn on the cob or shelled was fed to cattle a large per cent of it would pass through them undigested and therefore wasted, unless they were followed by hogs. He knew the plaintiffs had no hogs to follow their cattle. He was informed that the power which was to be supplied by the engine contracted for was necessary to enable, the plaintiffs to feed their cattle economically, and to obtain the quickest and best results in the preparation of them for market. The special circumstances under which the contract was actually made were fully communicated to and within the knowledge of the defendant when he entered into the contract, and the damages resulting from the breach were such as both parties would reasonably contemplate would be the amount that would ordinarily follow from the breach under those circumstances. The damage that would result to the plaintiffs for want of mill facilities in grinding their corn, occasioned by defendant’s default, was reasonably within the contemplation of the defendant when he entered into the contract. The necessary expense which plaintiffs would likely have to incur
And the defendant further objects that so much of plaintiffs’ instruction as further told the jury that they should also consider the reasonable compensation to plaintiffs for the additional expense, loss or damage, if any, which they were compelled to incur, and did incur, by reason of the failure of defendant to deliver said engine in accordance with his said contract, in the purchase of cotton seed meal, if same was necessary for their said cattle, in case you further find that the necessity of such additional expense, if any, in case said contract was broken, was brought to the attention of defendant at the time he entered into said contract, or that the necessity of such additional expense, if any, in the event of the breach of said contract, may reasonably and fairly be considered to have been in the contemplation of the parties, by reason of the defendant’s knowledge aforesaid, at the time they entered into said contract, not exceeding $430, was an improper expression of the law of the case.
It appears from the evidence that the horse-power mill which the plaintiffs rented had not capacity to grind the quantity of corn required to feed their cattle by one fourth, or twenty bushels. To supply this deficiency the plaintiffs purchased cotton seed meal. If the plaintiffs were unable to grind the quantity of corn necessary for the feed of their cattle, in order to' keep them in a thriving condition, then, as prudent cattle feeders, they would, of course, substitute the next best and most economical feed accessible to them for the
It is stated in Sutherland on Damages, section 54, that where the alleged breach of contract is alleged with requisite certainty to be the cause of the injury in question, it is also to be deemed the cause of all of its concomitant and incidental details which are constituent parts of the injury, including necessary and judicious expenditures made to stay or efface the wrong or limit its consequences. The part of the plaintiffs’ instruction last quoted left it to the jury to say whether or not the plaintiffs were compelled to undergo any additional expense in purchasing cotton seed meal by reason of the defendant’s default. Under it, the jury was authorized to determine from the evidence whether or not the cost of the cotton seed meal was greater than the cost of an equivalent quantity of corn meal ground on plaintiffs’ mill, had the defendant furnished the engine under the contract.
It is not perceived upon what principle the plaintiffs were entitled to recover this item of damage. The plaintiffs by resorting to the horse power mill were enabled to provide three-fourths of the corn meal required to feed their cattle, and for’the other fourth they substituted cotton seed meal in a quantity sufficient to get the same results as if the cattle had been fed exclusively on corn meal. This method of feeding was adopted on the day defendant made default in delivering the engine and was continued from thereon until the time when plaintiffs reduced the number of their cattle by sales, after which the hired mill had sufficient capacity to grind all the corn required for the remainder. The plaintiffs did, not change their feed pens. The conditions were therefore in every respect precisely the same as if the defendant had
H all the meal fed the plaintiffs’ cattle had been ground on their own mill, the expense of feeding such cattle would have perhaps been less but the length of time required by such feeding to prepare them for market would have been exactly the same in either case; so that the plaintiffs’ right of recovery should have been limited to the three preceding items of damage to which we have referred. A recovery of these items afforded them complete compensation for their entire injury» H the cattle were fed longer than was usual, or at a loss, the defendant’s default was not the direct and proximate cause thereof. The cause must be found elsewhere. To allow this item would be to allow the plaintiffs to recover for a loss they did not sustain in consequence of any default of the defendant. It therefore follows that the last quoted part of the plaintiffs’ instruction should not have been given.
No error is perceived in the action of the court in refusing defendant’s instructions.
The judgment will be reversed and cause remanded.