*1 CO., Inc., FURNITURE DOEHLER METAL STATES. v. UNITED
No. Appeals, Second Circuit. Circuit Court April 26, 1945. *2 City Walker, *3 York & New Gresser of Walker, City, on (Nathan New York
brief), plaintiff-appellee-appellant. City McGohey, of New York F. X. John City, Ryan, of coun- (John New York F. defendant-appellant-appellee. sel), for FRANK, HAND, L. CHASE Before Judges. Circuit
FRANK, Judge. Circuit default Doehler was in 1. Since covered delivery as to the furniture government had reletting pro- privilege, by the conferred toto vision, accept delivery in to refuse to 6,321 contract for the and to let a new “excess pieces, Doehler for the holding govern- that the cost.” Doehler contends privilege as to ment not exercise that could respect furni- part reletting with to Doehler deliver ture, balance, calling on while cannot Doehler and that therefore pro- reletting pursuant liable be held that, by effect, argument vision. In conduct, government abandoned conten- provision. That rights under that government’s volun- is untenable. The tion of its portion tary relinquishment of of the abandonment privilege was not an decide, so Although we do not it. rest of assume, Doehler arguendo, that may
we
might
to deliver
refused
properly have
true
were
pieces;
even
sought to
government
respect, the
in that
niscent,
the rule
rigid formality, of
con-
in its
of the
deviate from
terms
case)
support
Shelley’s
finds no
would not
ferring
privilege,
cases;
Doehler related
cited
those
privilege as
invalidate the exercise of
performance
calling for
5,644
contracts
relet
pieces.
substantially different
work
kind
con
at the same
may arrive
had
first
from
contractor
If
assume
clusion
another
route:
perform
delivery
agreed
for the
privilege,
attempted
that the
exercise
substantially
character.2
different
of a
invalid,
notice
partial,
then
however,
addition,
April
Doehler
17-18 was an offer
accounted,
may
in fact have
privilege
to exercise that
entirely,
increased
some extent or
delivery
to receive
contract.
named
pieces; assuming
further
the 677
*4
argues
Equipment
have
Doehler
that
must
that
properly
refused
Doehler could
have
known
the
could never
that
that,
so,
govern
offer and
had
done
the
it
prove
precise
any
amount of
5,644
ment, by
only
reletting a contract for
therefore,
delay;
caused
and
pieces,
rights
would have lost
its
Equipment,
the added
recognizing that
is
Doehler
reletting provision, the fact
that
risk,
clause
in
increased
it
its
should
but, May 31,
six
not refuse
some
did
“conclusively
making delivery,
pre-
notice,
weeks
the 677
after
delivered
sumed”
that its contract
to have demanded
pieces;
le
accordingly,
Doehler’s
whatever
compensation
promise
included
of extra
a
been,
gal position might
it
have
otherwise
argument
taking
that
risk. But that
surely
position
object
no
to
is
now in
impliedly
axiom that business-
rests on the
provision
reletting
enforcement of the
toas
they
invariably recognize
men
risks
5,644 pieces.
always nicely
take
in
and
calculate them
one
dollars and cents. Doubtless at
time
in
Doehler contends that
economists, believing
many
it to be self-
clusion in the
of the
is
a
evidently
every
.solely
true that
wiped
Doeh
man
clause
out
man,” ac-
fanatically rational “economic
liability
ler’s
cost” under the
“excess
cepted
provision,
law
reletting
regardless
virtually
axiom
a
of na-
whether
that
as
of
ture;
not,
fact,
but,
or
in
ob-
that
all or
as
result of accurate
inclusion caused
behavior,
servation of human
axiom is
price
Equip
of the increased
that
under the
For,
Doehler,
generally
assumption
argues
now
treated
an
to
ment contract.
as
cautiously
addition
used most
full
of
that
with
aware-
a material
change
“neglective
ness that
it
price
which
a mat
is a
fiction.”3
“affected the
as
fictions;
other)
ter of
Courts
such
(remi
(and
law.”
use
alleged
This
doctrine
36,
fictions,”
“neglective
Axman,
As
see
States
234 U.S.
to
v.
Rosenberg
Philosophy
Vaihinger,
736,
of “As If”
58 L.Ed.
S.Ct.
States,
(transí.
109-110,
1925) 19-25, 79-80,
Doehler
v. United
this increased fiction should conditions, easily be- might wartime presumption” or have of a “conclusive basis Besides, strong probability. otherwise evidence'. come serve as a substitute for inconsistently) says (somewhat Moreover, indulge we would in the sheer- brief, con- Equipment, when its it made its say Equip- est guessing if we were tract, “may sanguine of abil- have been so necessarily regarded ment must have perform de- ity any as make time added appreciably augmenting clause as lay damage unimportant.” seem risk; even without clause, extent, Equipment, Whether, then, if subjected would have to what and delayed, consequences relet added clause named affected the provision liability questions possibility are has, thing neglect others, ities and relations which a elements and all things together only en- are rele- note which exist those features thing an instance vant to is no able us to view that each other. Hence there indefinitely repeatable example talking purely or fiction in economic about patterns types remember, Thus Adam motives we Smith situations. surely things knowledge did, ab- in actual these are our involves life complex infinitely associated with If we straction from other motives. recognize unique properties reality abstractions, perhaps situa- * * Through proc- nothing (in then there fictional tions *. have *5 develop straight false) perfectly no- we sense of ess of abstraction about patterns limiting bodies, perfectly of lines, tions of ideal or circular free engines, thus arrive frictionless other entities structure and behavior. and straight perfectly concepts imaginary a which at line, of seem indeed are and pure surface, incapable separate a of known to ex- of a frictionless of body, rigid motive, and aof istence. For tween relation distance economic so of some situation or of be- phase represents things on, which a in where the each exists nature of other, things independent none of but of are and is with the whole be identified thickness of we which can cord or chain which * * * anything. way a It is of of nature measure it. Another concrete serious to all however, error, widespread looking neglective and at fictions such as objects perfectly rigid tion, of suppose bodies, perfect because the that distribu- thinking ab- selected are and discursive is like to view them as things phases .things, and not thing of ideal stract limits. No one in nature corresponds total- these, things undifferentiated in concrete their but dif- do degrees ity, rigidity is fallacious homogeneity, science that therefore fer in of or may arranged that should realize For we and and cording fictional. into series ac- thought objects degree such rigidity of the abstract to the of or straight ‘laws,’ ‘perfectly ‘numbers,’ homogeneity they possess. Perfect parts rigidity na- lines,’ of are real so on would and then be the character they though (even exist do which all the members ture of the series possessed particular things, degree, or relations but in some on and particulars). they such basis of which of transformations are in ordered principle ab- or ratios are It numbers series. such a series. is the of Because order of that there follow it does If stractions there is no inherent anything abstraction, that assertion in the fiction in fictional is there is in none moon, or ‘one’ scientific ‘construction’ earth has out of such ele- recently mortality ments, as, example, typical has for infant a of ver- ‘rate’ decreased. contrary supposition animal, typical valley The tebrate a river or factory government * unit, scientific notion of a false as an an arises from economic ideal procedure It arises results. limited and conditions. ** maps Fictions, charts, forgetting are abstractions like and things precisely they parts, phases, are useful do not or elements real or their they copy only though significant relations, are the whole but even respects These with the relations. relations are identical not things. identical * * * analogous cases; perceive certain and and The conjunction phenomena only always flux master the when occur elements through running others, is it the in isolation threads never we see identity.” approach, against argument For another real- a their more an no Bloomfield, language, see student one can be a ity the fact than Aspects Linguistic Science, being Interna- other without a creditor brother Encyclopedia Science, pos- against argument Unified tional things an is I, (1939) 36-38, having No. sibility Yol. abstract char- these abstract some Science acteristics. “cannot price in the second basis named on the be answered fact which cannot recovery for measure be used for the the trial us or of the data before before original contract.”5 judgment breach summary judge gave when he be- like one attempted comparison then is a trial government. must be There where pigs apples. tween But on those issues. con- the two be delivered under issues, we respect With to those of only and the precisely same tracts are must be on proof think that the burden obligation item of an added difference is contract, Had government. the second ascertainable which cost in an enhances the except in terms price, as to been the same amount, comparison, the cost once first, second in the price named as the contract price in the that item is deducted from reasonable, assumed be would be contract, unimpeachable. Con- second is contrary But any absent evidence.4 such sider, instance, Idaho for assumption light is unwarranted fol- potatoes Louis to be delivered at St. say of the additional clause. We cannot greater price, lowed a relet at strong that that probability there is Cleveland, requires where delivery at price; clause did not nor is true raise the are more increase in can shown that the to Doeh facts accessible transportation to be due to additional government; ler than any policy grounds nor are there charges. letting the bur rest, ordinarily den rest where it suggest We take occasion e., which, i. government, under the great care judges that trial should exercise counterclaim, asserting against a claim is judgment. granting summary motions for Doehler. litigant A right has a to a trial where there facts, If, is the doubt slightest as to the and a proved at the trial should be reviewable; right re explains denial the added entire dif- prices grant summary judgment ference fusal to between the in the two con- tracts, used, *6 government’s judgment, wisely then the Such counterclaim reviewable. But, however, appear, praiseworthy time-saving is must fail. a Should it device. only although despatch the price prompt judicial added clause busi increased the virtue, part, the ness is nor then counterclaim will it neither the a is sole fail wholly by purpose the merely primary but will reduced for which have be courts partial the amount been of such established. Denial of a dis increase. For trial on puted delay. the is situation here like facts worse than Arenas that which Cf. States, government, purported 419, 429, 433, exists when the in a 322 v. United 64 U.S. reletting, 1090, contracts for 88 work S.Ct. L.Ed. 1363. sub- The district stantially from courts by different do well that covered would note time has original contract; case, by the often summary in such a the been lost reversals government judgments improperly cannot recover the v. under re- entered.6 Sartor letting provision that, Corporation, for the reason Arkansas Natural 321 the Gas incommensurable, 624, 620, 724, two being 967, 64 contracts U.S. 88 the S.Ct. L.Ed. 4 McMullen, 222 United U.S. cf. Fidelity States States v. United v. United States 460, 471, 128, Co., 512, 516, 269. 32 236 S.Ct. 56 L.Ed. U.S. 522- 524, 5 36, 526, Axman, 298, 234 U.S. United States v. 35 59 S.Ct. L.Ed. 696. 6 42, 736, 1198; See, e.g., 41, States, 34 L.Ed. S.Ct. 58 Arenas v. United Fidelity 419, 1090, 322 64 v. United States U.S. S.Ct. 88 United States L.Ed. 1363; 512, 298, Co., 522, 59 Sartor v. 236 U.S. S.Ct. Arkansas 35 Natural Gas Corporation, 696; Bridge 620, 724, Co. v. 321 L.Ed. California U.S. 64 S.Ct. 967; States, 344-345, v. Eleven West 337, 88 245 U.S. L.Ed. Cohen Street, 532; 91, Cir., 531, 42nd 2 62 L.Ed. We need 115 F.2d 38 S.Ct. govern Coleman, Cir., v. whether the Whitaker 5 here consider F.2d 115 proceed 305, 306; v. Wickwire having under chosen the McElwain ment reletting Spencer Co., provision Cir., 210, has 2 made election Steel 126 F.2d precluded 211; asking Corpora from Weisser v. Mursam Shoe is therefore buyer which, tion, 344, damages Cir., 346, a 2 127 as whose F.2d for 145 A. defaulted, 467; has would L.R. Toebelman be entitled seller v. Missouri-Kansas Pipe Co., Cir., 1016, law.” As 3 to whether Line 130 at “common F.2d damages reletting 1018; Goodyear recoverable under the Accident General etc. v. Cir., provision Co., from those 2 differ at “com Tire & Rubber 132 F.2d seeking Walling 122, 125; Creamery law” and as to whether v. Fairmont mon re provision 318; Co., Cir., election, Walling 139 under that F.2d lief is an v. up here, Doehler, set where, dam- pleadings, that, especially as tells us ages go payment defense an alternative question, the courts should are in defense, summary support by a In of this making slow haste counterclaim. about that, Court said filed under judgment; stating an affidavit Supreme there the 1940, May 24, relating summary disposition is- distinct “at contract least a by covered damage sues of be evidence sale articles not should on contract, liberty government disbelieve December 1938 jury be require would not at $11,531.67 paid, verdict owed it been and which for a directed which had not valid, that, this party.”7 this moving Of course and sum, if the counterclaim respect, by government, re- consti precedent, court will withheld subject payment Madeirense The cent tutes of the ruling counterclaim. Brasil, judge Lumber trial issue which did consider Do v. Stulman-Emrick this S/A presents question Co., Cir., also dealt F.2d of fact think judges that with at sitting in the instant case trial. atypical peculiar ruling, of the appeal, government, 5. The on its case, not be should facts of the Madeirense complains judge trial that the held that the applied. generously government’s counterclaim reduced e., $9,119.75, 3. Both contract with i. the amount collected provided a dis Equipment for liquidated damages Equipment. and that with pay price erred, for following the contract count think trial court for 1% days. paid government Suppose ment within ten reasons: that the contract 5,644 within the pieces had contained days in the ten deducted Then cost” for clause. the “excess 1% the excess liable to $1,050. computing In Doehler would been amount of which the only (1) have cost, government purchase included not reduced would have 5,644 price pieces the Doehler increase in purchase by Equip deducting but also caused 1% e., delivery; judge ac price, $834.42,and the trial the words i. ment’s are broader “increase cepted computation. Doeh “excess cost” than that method If, erred, price.”8 circum respect, he in those ler asserts contending stances, against improperly government by suit $834.42 counterclaim, valid, Equipment for dam had collected sum deducted and that amount; delay, for,.says ages caused it could not also should reduced Doehler, given Doehler. the discount was to be recovered that amount from have But that *7 amount, delay prompt representing payment payment and no has been such ap have pieces. damages, properly that con not been to it for those But could made plied Equip in of the other item neglects the fact that the reduction tention was, e., part, liability, liability in the a substitute for Doehler’s i. for
ment contract its contract, pay price. prompt and that in situa the Doehler increase tion contract the Equipment yield with its dis a similar result: The ment to resultant here must damages count, $1,050, liquidated by reduced the “excess cost” amount collected as Doehler; Equipment precludes recovery that benefitting not to reduce the thus from price equivalent Equip in ef Doehler Doehler contract amount from on account give delay.9 may Doehler benefit to that But that amount not fect be ment’s would part deducted from that of the claim be twice. liquidated. implied law, Reid, Cir., Snower It was in F.2d M. 8 139 by proof States, Cir., F.2d 140 was to be 7 & measured v. United Co. general damages cognizable under actual 367. * * * Judgment Summary 7 Shientag, law. Thus we demon- have Cf. impliedly Doehler was li- strated that damages delay brief, at the able actual in Doehler arrives In its for for express liability addition to its ex- but a different conclusion same for n says: added.) “Obviously, (Italics ground. the cess eost.’’ Doehler the liquidated re-let whether in the need consider clause government may liquidate damages recover from ‘for Doehler to was contract delay Although Equipment’s delay.’ to is to for that the extent such damages resulting delay it from that the actual in Doehler found be liquidated damages the that exceed received denied contract be cannot Equipment. damages from liable for ‘for de- Doehler was liability lay.’ However, Doehler’s damages liquidated the part with all or constituting increase the against Doehler government the However, must be that otherwise there price. in the contract enriched, Doehler’s unjustly at would be extent the a deduction to should such be the “ex- expense, receiving by more than liquidated dam- collected as amount the But, unjust damages proof, absent such cess cost.” represent actual ages does not abe assumed to that enrichment should not be delay, by Equipment’s since caused may government fact. We know the amount, any, govern- the fact reduced if damaged ways be in incalculable seriously ment’s cost. receipt in war- through delay time; problem approach to this An alternative liqui- recently held that we have as- Let us to same conclusion: leads the damages government clause in war- dated which cost” for sume that the “excess is not to defeated easily time any actual liable include Doehler is does for very only great the with reason that Then, Equipment’s delay. ex loss from all, difficulty, government if at could the gov- hypothesi, that loss quantum show its loss. (which in- “cost” be taken ernment’s must Walkof, Cir., States v. 144 F.2d cost”) computing to account “excess Such would have ruling been our for which item of an additional loss government Equipment had sued government right reim- to be had liquidated damages. un- It be most However, Equipment. bursed to then, fair, say, that, litigation to with liquidated collect- damages extent that Doehler, government deemed must be Equipment ed item of exceed that have suffered an actual loss less than loss, regarded actual as must be excess liquidated prove damages it can unless reducing price paid Equip- here, contrary. And where have no ment. precedent us, guide we must decide on policy, governed basis seems prob We are left then what with that, to us prove lem: fair.10 Must Doehler in whole part, damages paid or Reversed and remanded. greater were than the actual delay damages by Equipment caused HAND, Judge (dissenting L. Circuit government prove they were part). not? We think following rea agree ,say, I ex- my in all brothers son, the task is may sup Doehler’s: We cept I think defendant should pose, an extreme (but case which one compelled computing damages, express does not category), exhaust the paid from what deduct understanding between the Company so much of the which amount Equipment by Equipment paid liquidated damages, set off as it cannot liquidated damages as concealed means prove damages delay. agree actual I of reducing price. sup its contract Such posititious plaintiff is liable for supplies case the ra us caused to the tionale: defendant crediting The reason for *8 10 82, California, at- Morrison Mr. Justice Holmes often called v. 291 U.S. policy (or 91, 281, 664; what he called 54 tention ‘legislative S.Ct. 78 Webre L.Ed. considerations”) 578, Commissioner, Steib as influenc- Co. S.Ct. v. 65 development judicially 581; ing District made v. Director States 21; legal See, following e.g., Immigration, Cir., 14, 2 rules. writ- 106 F.2d Preliminary Thayer, ings Holmes: Evi- Common Carriers and Treatise On Law, (1898) Wig- (1879) 318-319, 327, 331; 13 dence The Common Am.L.Rev. (3d 630-631; ed.) 2486; Bohlen, 609, (1881) more, Evidence The Common Law § 68, 116, 204-205; Presumptions 1, 5, 35-36, Path The Effect of Rebuttable The Law, (1897) Upon 457, Proof, The 10 of Law Harv.L.Rev. The Burden 68 Early (1920) 311, 466-467; Frankfurter, 307, 310, of Pa.L.Rev. The Un. Writ- 321; 319, Morgan, ings Holmes, Jr., 313, of O. 44 Harv.L. Observa- W. Some 719, 774, 717, 779, Concerning Presumptions, tions 44 781 Rev. Vegelahn (1931) 906, 909, 910-911, note, 791; Guntner, Harv.L.Rev. v. 167 104, 106, 926, 928, 92, 1077, 930-934; Morgan, Instructing Mass. 44 L. N.E. 35 Am.St.Rep. Jury Upon 443; Presumptions 722, 57 Bur- Hudson and R. A. County McCarter, Proof, (1933) 59, den Co. 209 47 Harv.L.Rev. Water v. U. 529, 355, 828, Co., S.Ct 349, Rustad v. Great Northern R. L.Ed. S. 453, 727, 728; 122 Minn. 122 N.W. 560. Lis- 14 Ann.Cas. Lyman, bon v. N.H. indeed, actual Company; for all delivery of the damages delivery in after plaintiff’s the time fixed for delivery by the until are Equipment Company; all such cannot, how- “proximate” I damages. ever, upon issue see relevance and defendant the contract between the compromised Company, advance, them, defend- between delay. There can damages ant’s real doubt that the damages did liquidated correspond anything that from the recovered could have defendant forget plaintiff I that score. do may have been the in actual losses defendant’s great fact as
—indeed, justified possibility alone is, question here clause—but the relevant loss, actual not what the defendant’s was from the it could have recovered what cents; plaintiff in dollars and issue defend- to which the contract between Equipment Company is inter res ant alios acta. To dis- allow defendant to off allow it to regard what set is to liquidated dam- charge plaintiff with ages; and if defendant wished so place, liability, plaintiff’s increase the only place, contract be- tween the two. PUB. COR v. MISSISSIPPI MURPHREE PORATION. No. Appeals, Fifth Circuit. Court Circuit May 7, 1945.