271 F. 918 | 8th Cir. | 1921
Lead Opinion
Appellee commenced this action at law to recover money which it had paid to appellant in advance as a part o f the consideration oí a contract executed by it and appellant August 10, 1918, and modified by a supplemental contract dated February 19, 1919, which contract appellee had rescinded for the failure of appellant, after partial performance, to perform in full. After issue joined, it appearing that an accounting would be necessary, the cause was by consent transferred to the equity docket and thereafter proceeded with as a cause in equity. On final hearing a decree was entered in favor of appellee for $20,513.23, being the amount sued for, with interest. Appellant claims that the trial court erred in not allowing a credit to it in the sum of $4,124.96, and in the allowance of interest. The basis of appellant’s claim is as follows:
By the original contract between the parties appellee purchased and appellant sold a logging railroad and its equipment for the sum of $122,500, to be paid as set forth in the contract. The different items making up the logging railroad were stated in the contract. The purchase price was to be paid as follows:
‘‘Said purchase price of one hundred twenty-two thousand five hundred dollars ($122,500.00), less any abatement thereof or deductions therefrom as hereinbefore provided, shall be paid by the purchaser to the seller in the manner and at the times following, that is to say, twenty-two thousand live hundred dollars ($22,500.00) at the time of the execution and delivery of this agreement, ninety thousand dollars ($90,000.00) in installments at the rate of-forty-five dollars ($45.00) per gross ton for all rails delivered and loaded f. o. b. cars as aforesaid, according to sight drafts drawn by the seller on the purchaser, with bills of lading attached, or as deliveries are made on the ground as aforesaid, then according to the weight of such rails so delivered on the ground; and the balance, If any, but„not exceeding ten thousand dollars ($10,000.00), upon tender of the purchaser taking the remainder of said rails, trace, material and equipment hereby sold to and purchased by the purchaser.”
Tlie property was to be delivered by January 10, 1919. It was not so delivered. The failure of appellant to deliver was the cause of the supplemental agreement of February 19, 1919. This supplemental agreement extended the time of delivery and contained this language:
“The purchase price under said contract of August 10, 1918, is amended from $122,500.00 to $104,500.00. The reduction of $18,000.00 is to be absorbed by reducing the price per ton on drafts covering rail delivered hereunder from $45.00 per ton, as stated in said contract of August 10, 1918, to $35.00 per ton. if more than 1,800 tons are delivered, the drafts for additional tonnage shall 1)0 made at $45.00 per ton, and if less than 1,800 tons are delivered, tne unabsorbed balance of the $18,000.00 reduction shall he paid by the seller to the purchaser forthwith upon completion of this contract.”
Appellant, having received payment for the property delivered in accordance with the terms of the contract, has received what the parties agreed was the value of the property delivered. Upon what principle of equity is the wrongdoer to receive, not only the agreed value, but in addition the profit made by the party not in fault by its own labor and expense. We do not think that justice requires appellee to
The decree of the trial court is affirmed.
Dissenting Opinion
My dissent rests upon two propositions relied on by appellant, which I think should have been applied in this case:
First, the purchase and sale Was of all the material (excluding only cross-ties) in a logging railroad, including rolling stock at an agreed gross price. Deliveries were to be made by the seller in installments as ordered, and on each delivery a payment down was made by the buyer. A small per cent, of these payments was taken out of an advanced deposit of $22,500 with the seller, made by the buyer when the contract was executed, and the balance was paid over on each delivery. Thus the contract was entire and indivisible, and could not be split up into as many contracts as the number of deliveries to be made; and in that event rescission must be in toto. Cresswell Co. v. Martindale, 63 Fed. 84, 86, 11 C. C. A. 33; Consumers’ Bread Co. v. Flour Mills, 239 Fed. 693, 152 C. C. A. 527; Mining & R. Co. v. Brown, 56 Colo. 301, 312, 138 Pac. 51; 13 C. J. 62_ _
_ _ Second, the buyer rescinded after several deliveries and failure to make more, and then sued the seller for the unapplied balance of the deposit, $19,315.66. The case was submitted on stipulated facts, in which the seller admitted the balance of the deposit in its hands, but claimed that inasmuch as there had been rescission of the contract it should be allowed $4,124.96, as the reasonable value of the goods delivered, over and above what it had been paid for them—that it be put in statu quo. The court declined to deduct the amount claimed, which was practically conceded as a matter of fact, from the balance of the deposit. I think this was error. Lyon v. Bertram, 20 How. 149, 15 L. Ed. 847; Kauffman v. Raeder, 108 Fed. 171, 47 C. C. A. 278, 54 L. R. A. 247; Eclipse Bicycle Co. v. Farrow, 199 U. S. 581, 587, 26 Sup. Ct. 150, 50 L. Ed. 317; 24 A. & E. Enc. of Law, 645, and cases.
That is the only error assigned, and to that extent I think the judgment should be modified.
