145 P.2d 171 | Kan. | 1944
The opinion of the court was delivered by
This is an action to recover money. Judgment was for the defendant on a cross petition. The plaintiff appeals.
The plaintiff is in the business of making rivets in Chicago. It alleged that between certain dates in 1941 it furnished merchandise to the defendant and that there was still owing it the sum of $615.87. Judgment was prayed for this amount.
The defendant operates a planing mill in Topeka. It alleged by way of cross petition that it had a contract with the government to build certain field desks in accordance with specifications, which
In response to a motion by the plaintiff the court ordered the defendant to make its answer and cross petition more definite and certain, and the defendant did so by stating the names of the individuals with whom the oral agreement pleaded in its answer and cross petition was made, and that the plaintiff agreed to make delivery of the machine and rivets in not more than thirty days after the date of the oral agreement.
The reply was a general denial and an allegation that the rivets and the machines had been delivered promptly.
The case was submitted to the trial court without a jury. The court found in effect that sometime prior to December 5, 1940, the defendant bid for the construction of 1,020 field desks, Type III, and 2,000 of another type known as Type II; that the Type III desks were to be made of 5-ply wood and Type II of 3-ply wood; that about December 5, 1940, a representative of the defendant called on the plaintiff in Chicago with blue prints and specifications for these desks; that the representatives of the defendant told plaintiff that it was not versed in the use of rivets, whereupon plaintiff
The conclusions of law were that the defendant was entitled to $1,357.33 on its cross petition that from this should be deducted $615.87, the amount of plaintiff’s claim, which would leave a balance of $741.46, for which the court gave judgment for the defendant against the plaintiff.
The plaintiff filed its motion for a new trial and a motion to set aside the judgment and to amend the findings of fact and conclusions of law in various particulars. These motions were overruled. Hence this appeal.
Plaintiff points out -here that the defendant pleaded in its cross petition a contract whereby the plaintiff agreed to furnish rivets.
We are unable to reach this conclusion. As has already been noted in this opinion, the court found that on December 5 when defendant called on plaintiff in Chicago it had a blue print of the large desk showing the rivets needed for this desk. The court further found that defendant was assured by plaintiff that if it obtained the contract plaintiff would take care of its riveting needs promptly and properly. We think that this finding when considered with the one wherein the court found that on December 11, 1940, the defendant wired plaintiff for shipment of twenty percent of the rivets followed by a letter of plaintiff submitting a list of the rivets required amounted to a finding that a contract was consummated on either December 5 or December 14, 1940. It makes but little difference which date it was. This in view of the finding -that after the contracts were entered into with the government defendant started making desks and the plaintiff entered on the business of furnishing it with rivets. There was substantial evidence to sustain these findings. As a matter of fact, there was very little conflict in the oral testimony. Most of what transpired between the parties consisted of letters and telegrams about which there was no dispute at all. Under the circumstances the findings of the trial court on the issue of the making of the contract will not be disturbed. See Voiland Painting Co. v. Christman, 138 Kan. 289, 31 P. 2d 17, and Solomon v. Lampl, 135 Kan. 469, 11 P. 2d 1028.
The plaintiff next argues that the conference of December 5, the telegram of December 11 and the letter of December 14, 1940, did not constitute an agreement because the telegram was indefinite as to amount, terms and kind and character of rivets and was an attempt to limit the order to only a small proportion of the rivets needed. We are not impressed with this argument. The defendant’s agents had the blueprints and specifications for the large desk with them at the conference of December 5. The specifications for both types of desks were available to the plaintiff at the office of the army quartermaster in Chicago. It knew how many of each type desk the defendant had contracted to make. This furnished it with as much information as to amount, kind and character of rivets required as was possessed by defendant. All these matters
The next argument of plaintiff is that there, was no evidence to sustain the allowance of $320 for grinding rivets. The record discloses that the defendant reached a point where it was necessary for it to grind the points on some rivets that had been furnished and which were otherwise satisfactory. There was substantial evidence that this was done, while defendant was waiting for the delivery of proper rivets. There is no dispute as to the fact that about two hours time at fifty cents an hour was spent grinding the rivets for each desk and the rivets were ground for 320 desks and this would make $320 which is allowed for that item.
Plaintiff next argues that the court erred in allowing the damages for seventeen days delay at $56 per day or $952. The contract the defendant had with the government contained the following clause:
“Delays — Liquidated Damages: If the contractor refuses or fails to make delivery of the materials or supplies within the time specified, or any extension thereof, the actual damage to the government for the delay will be impossible to determine and in lieu thereof the contractor shall pay to the government, as. fixed, agreed, and liquidated damages for each calendar day of delay in making delivery, a sum equal to one-fifth of one percentum (% of 1%) of the price of each unit for each day’s delay after the date or dates specified for deliveries.”
The basis of the argument of plaintiff in this connection is that defendant testified and the court found that some delay was occasioned by the failure of the company which was supplying the plywood to get it to defendant on time and the testimony of defendant as to the seventeen days was only an estimate as to how much of the delay was caused by plaintiff, not based upon any exact figures as to the particular dates on which the failure of the plaintiff to furnish the rivets caused delay. This is not quite correct. There was some evidence that the failure of the plaintiff to ship the sort of a riveting machine that would work on these rivets caused thirty days delay. There is also evidence that about four to six weeks delay was caused by the defendant being compelled to wait while
“It is a general rule that damages may be recovered when they arise naturally — that is, according to the usual course of things — from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it.” (S'yl. ¶ 1.)
See, also, Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444, and 15 Am. Jur. 447, § 47.
. The plaintiff contends that the court erred in allowing credit for the unsuitable rivets returned, for the telephone and telegraph expenses and for the freight charges in returning the rivets. These were all expenses that the plaintiff’s delay in furnishing rivets caused and were proper items of damage. The plaintiff filed a somewhat lengthy motion asking the trial court to amend its findings of fact in several particulars. It will add nothing to this opinion to discuss those requests item by item for the reason that the theory upon which they were asked has already been discussed. We find no error in the refusal of the trial court to amend its findings. They were all sustained by substantial evidence.
The judgment of the trial court is affirmed. ■