220 P. 1069 | Utah | 1923
On July 18, 1922, plaintiff a foreign corporation located in the state of Oregon, commenced this action in the district court of Salt Lake county, against the defendant, a Utah corporation, to recover judgment for three carloads of lumber
To this counterclaim plaintiff filed a reply, in which it set up three defenses: (1) That the Phoenix Construction Company had “canceled its order with defendant, and defendant had agreed thereto,” and that defendant had notified the plaintiff to “suspend all shipments of lumber to Grace, Idaho, or elsewhere”; (2) that “performance of the contract, if any, between plaintiff and defendant * * * was excused,”
stating the reasons therefor; (3) that the defendant “had waived” performance of said contract. Plaintiff subsequently added another ground of defense in its reply; namely, that there had been an account stated between plaintiff and defendant, by reason of which the defendant was precluded from recovering upon the cause of action stated in its counterclaim. The evidence was submitted to the court without a jury. The court directed judgment for plaintiff, and judgment was accordingly entered in the sum of $1,264.05.
As conclusions of law the court allowed defendant legal interest on said $1,157.36 from the time of the breach of said contract, amounting to $490.78, and added the same to said principal sum, which, with interest, amounted to the sum of $1,648.15. The court then ordered the $1,264.05 awarded to plaintiff substracted from the greater amount allowed the
While in its assignments plaintiff assigns numerous errors, yet, in counsel’s brief, the assigned errors are condensed to four propositions, which we shall treat in their order.
In this connection we remark that, while the court’s findings of fact are assailed in the assignments, yet the assignments in that regard are couched in general terms only; namely, “the court erred in its third finding of fact,” etc. In view that it is not contended that there is no evidence in support of the facts as found by the court, and that it is not pointed out in what particular or particulars, as provided by the rules of this court, the findings are not supported by the evidence, we cannot review the assignments relating to the errors'in the findings. Our consideration will therefore be limited to the propositions argued in plaintiff’s brief.
It is contended that the court erred in holding that the plaintiff had sold to the defendant 600,000 or any number of feet of lumber. In that connection it is insisted that, according to the terms of the contract, the title to the lumber did not pass to the defendant, and hence the court erred in holding that there was an absolute sale. In view of the terms of the contract, the character of the lumber specified therein, the purpose for which it was sold, and that it had to be prepared by plaintiff before delivering, in accordance with the specifications contained in the contract, we are of the opinion that the title to the lumber did not pass until delivery was made. In view, however, that the lumber was purchased for resale by the defendant, of which plaintiff was fully advised at the time it agreed to sell, prepare for delivery and deliver the lumber to the Phoenix Construction Company, the purchaser at the resale, and that the defendant in its counterclaim merely seeks to recover such damages as it may be entitled to for plaintiff’s breach in failing to
Plaintiff, however, insists that the defendant waived plaintiff’s breach of the contract after the breach occurred. Whether that contention is tenable or not depends upon the acts and conduct of the parties subsequent to the making of the contract. There is a large mass of documentary evidence in the form of correspondence between the parties, all of which is supplemented by oral testimony upon which the court’s findings are based. The question of waiver in this case is a question of fact depending upon the acts and conduct of the parties to the contract subsequent to the timé it was entered into. In view that this is a law case, and it is not contended that there is no evidence in support of the findings, we cannot review the evidence, and hence are bound by the findings of fact in that regard.
It is next contended that the plaintiff did not breach the contract. Whether the contention be sound or not, however, also depends upon plaintiff’s acts and conduct, all of which is reflected in the evidence. The court found that the plaintiff did breach the contract without cause, and hence, for the reasons stated why we are bound by the finding that there is no waiver, we are also bound by the finding that the plaintiff breached the contract. In this connection it should be stated, however, that it is true that the court did not make a special negative finding that the defendant did not waive performance of the contract. The court, however, in various findings, found that the plaintiff violated the terms of the contract, and wrongfully refused to perform the same, which is tantamount to a finding that there was no waiver. A negative finding, therefore, could not have accomplished more. Moreover, the question respecting the court’s failure 'to make a "special negative finding in that regard is not argued in the brief, and is therefore waived.
It is, however, also contended in this connection that under the terms of the contract the plaintiff was relieved from shipping the lumber at any particular date or dates. The con
“The shipper is to he relieved of the obligation to meet the above shipping requirements on the dates as shown only in case of strikes, labor troubles, or other circumstances beyond his control, but the cause or causes producing any such delay or delays must be diligently removed.”
The foregoing clause is restrictive. Shipments must be made as stipulated, unless prevented by one or more of the causes stated. There is, however, no evidence in the record that there were any strikes or labor troubles of any kind. There is some evidence that plaintiff was delayed somewhat from other causes, but there is also abundant evidence that those delays were excused by the defendant and by the Phcenix Construction Company. By “excused” we mean that both the defendant and the Phoenix Construction Company were willing to extend the time within which the shipments might be made. Plaintiff’s delays in shipping were, however, prolonged to such an extent that the Phoenix Construction Company requested the defendant that, in view that the delivery of the lumber had been so long delayed, shipments be temporarily “suspended.” The defendant communicated the request to the plaintiff and asked that the shipments be suspended until further orders from the defendant. The plaintiff replied that the shipments had been suspended, and that it had “canceled your order.” The defendant at once notified plaintiff that it did not intend to cancel the order, but had asked for a suspension of the shipments at the request of the Phoenix Construction Company because of the plaintiff’s prior delays in making them. To this plaintiff replied that the cancellation of the order was final on its part, and that under the circumstances defendant should not expect plaintiff “to ship the balance at the old price.” Plaintiff further stated in the letter that its position was 1 ‘ definite and 'final, and there will be no need of further correspondence regarding the position we have taken in this matter.” Plaintiff thus intended to, and did, end the whole matter by merely canceling defendant’s order “at the old .price.” It is quite clear that it was the advancing price that
While it is true that there are circumstances in this case which, upon certain phases of it, would justify a conclusion contrary to the one arrived at by the district court, yet, in view of the whole record, and in view that in this class of cases we are prohibited from passing upon the weight of the evidence, and for the reasons hereinbefore stated, we cannot interfere with the court’s conclusions.
Finally, it is argued, stating it in counsel’s language, that the defendant “was not entitled to recover on its counterclaim because of an account stated between the parties subsequent to the contract in question.” While the court’s conclusion upon this question is in the form of a finding of fact, it may, nevertheless, stand as a conclusion deduced from the facts. We have carefully considered the documentary evi-
We have considered all the matters that are argued in plaintiff’s brief, and, after doing so, are constrained to hold that the judgment of the district court should be, and it accordingly is, affirmed. Costs to be taxed against the plaintiff.