*1 COMPANY v. FRANKLIN MANUFACTURING RAILROAD PACIFIC COMPANY. UNION 248 W. 2d 324. 45974.
December No. Jorissen, appellant. Timothy Grayson Sanborn & and respondent. Miller, Kempf A. & Miller and Thomas argument. court without oral decided Considered Per Curiam. County appeal judgment Hennepin an a
This is granting summary judgment in favor District Court $1,095 Manufacturing Company, amount of Franklin by defendant, Union damages arising contract out a breach of Company. remand for further We reverse and Railroad Pacific proceedings. presented upon to the trial court a matter was Plaintiff, corporation, placed facts. Minnesota an order with Kansas,
Owens-Corning Fiberglass City, in Kansas Corporation manufacturing plaintiffs for insulation to be used materials customary trade, shipping specifications As is business. arrangements and Owens- made between were freight charges Coming plaintiff prepaying latter. with Company, defendant, Pacific May Union Railroad On state,1 registered within corporation business to do plain- goods to Owens-Corning transport engaged by was Car No. Erie defendant’s delivered to tiff. directly routed Although shipment was to be on date. *2 21, May occurred, misrouting on and destination, admitted to its shipment was still delivery defendant, days the after to the plaintiff had possession. time the in At that defendant’s a truck to freight railroad defendant’s from the transferred con- delivery The sole transportation company in Minnesota. commence- prior plaintiff to the and defendant tact between plaintiff location inquiry by to the an ment of this action was period of delayed that goods delivery had been after time. damages the cost $1,095, in the amount of
Plaintiff claimed to Minnesota. the materials of the alternate 1970, prepaid 22, on June the evidence that The court considered Owens-Corning by freight charges defendant to were refunded stipulated parties addition, that In the the amount of $209.60. days past average in the was 7 shipping the orders time of like shipment prior plaintiff notify to that did not damage plaintiff. any Plain- or to that would result loss receipt goods upon indicated the ultimate tiff’s examination of damage. they condition without serviceable awarding judgment the summary in favor of In court concluded: Al- in this matter.
“The Court has awarded opinion damages, is of the though they may the Court be directly though parties lawsuit did not deal the to this that even relation- very contract nature of the the it can be inferred from parties part the of all the ship an intent on that there was stipulated parties actually have be made. average have taken an past shipments materials of similar 1 Mfg. by Franklin over defendant was established Jurisdiction (1973). N. W. 2d 227 Minn. 210 Pacific R. Co. 297 V. Union City days complete delivery to St.
of seven to Kansas by parties Cloud, into Minnesota. The entered failing to trans- also contract evidences defendant’s breach of fact, port plaintiff’s dispatch. In property with reasonable 7). (page breach is admitted to in defendant’s brief profits but “The lost Court notes that the claim not for is merely remedy defendant’s spent by the amount to carry objective breach and of the contract.” out It and unnec is well established that when an unreasonable essary delay occurred, in the the car has reasonably sup may for those be rier is liable posed probable contemplated re aas See, 377; 2d, Carriers, sult the breach. Had Am. Jur. ley Eng. (1854). Baxendale, Hep. 9 Ex. In other words, contempla must either have been within the tion of carrier at the time it entered into the contract or be likely they reasonably so result from the breach that can be Dunnell, Dig. (3 ed.) said to have been in 5B foreseen. As stated *3 2560: “* * * damages are When the assessed those which it as is had; suppose mind, reasonable to that the in is what * * * really aiming law, compensation, meant is the that at considers it fair to hold a defendant for which as a rea- ought likely sonable have man he to to as foreseen follow from a contemplated in breach. What he fact foresaw or imma- is [Citing (Emphasis supplied.) several Minnesota terial. cases.]” Thus, dispositive simply the issue in the instant case is whether entering at the time of the contract defendant-carrier could have reasonably likely plaintiff-purchaser pro- foreseen as would transportation cure delay substitute if there was a in the de- goods. livery of the plaintiff’s causing shipped
Whether action in to the be by reasonably to it means of substitute fore was probable consequence seeable of defendant’s breach is contract, the nature question depends upon of the fact of execution, circum surrounding the its the circumstances delay itself. surrounding of the extent the cause and stances rea nowas appears stipulated that there the facts itWhile special need was there son for defendant to believe that the what delivery plaintiff’s goods, it is clear prompt de goods were length delay before of the would delay length ais by plaintiff to the defendant. livered plaintiff’s foreseeability of assessing critical in consideration delay in securing transportation. If action other reasonably fore going only minimal, not be it would was to be procure substitute by the seeable defendant going delay to be transportation. hand, On the other if the was by substantial, reasonably it could well be foreseeable compelled trans procure would feel substitute portation goods. Therefore, have concluded that we matter should be remanded to court to determine the trial length plaintiff’s anticipated action of the and whether procuring reasonably foresee substitute was delay. by light length anticipated able defendant in of the proceedings. Reversed and for further remanded Peterson, (dissenting). Justice majority opinion, my view, upon the na- fails focus
ture of the sustained for decision upon case turn must whether the sustained are general character. or according principles damages,
General to the established in Hadley Eng. Baxendale, Rep. (1854), v. 9 Ex. Liljengren adopted state, in this & Mead, Furniture Lbr. (1890), 42 Minn. those are which are reason- ably They foreseeable as a result of the breach of contract. are *4 contemplation deemed to have been within of the at formed, irrespective the time contract was of whether or not contemplation they actually parties. See, within the 300 ed.) Dig. (3 Durmell, 57;
also, 2d, Damages, 5B 22 Am. Jur. § 2559, and cited. cases contrast, Special damages, the law will are those which which, accordingly, charge having with foreseen and special only cir- advised of are recoverable if the defendant was put him on notice that such which cumstances Liljengren Lbr. Co. result in the event Furniture & of breach. Freight Mead, supra; System, Scheppel Inc. v. v. Arkansas-Best App. 60, (1969); R. v. 117 Ill. 2d 254 E. 2d 280 Alton Co. N. Mfg. 152 216, 122 P. 2d Oklahoma 190 Co. Okla. Furniture (1942); Corp. Co. Rock Island Motor Transit Conditioned Air v. (1962). Iowa 2d 304 seeks to recover defendant- special damages. complaint expressly carrier are demanded truck cost of alternative of the materials as “special damages resulting delay from the excessive de- livery.”1 Plaintiff’s own characterization of the is con- allegation complaint sistent with the to have waited goods for defendant to deliver the misrouted would have forced plant goods. to close down its for lack of these Similar maintaining factory, wages claims for the cost paid an idle employees, goods, profits to idle use loss of or lost as the re- delay goods, sult of consistently damages. See, g., held to be claims e. Alton R. Co. v. Mfg. supra;
Oklahoma Furniture Co. Illinois R. Cent. Co. Hopkinsville Canning See, Ky. 578, 116 (1909). S. 758W. Annotation, 2d, generally, 1056; 166 A. L. R. 13 Am. Jur. Carriers, gravamen 377 to 379. The of these cases is that a §§ carrier will promptly not be held to have foreseen that failure to manufacturing plant deliver be used would result in shutdown. per Defendant’s breach was one of rather than a refusal to unwilling
form. It is not claimed that defendant was unable or to com performance. plete undertaking Plaintiff’s unilateral to use substitute transportation prevented completion defendant from Of the contract. *5 It is clear
gave of defendant no notice that the damages. profits not recoverable result in such lost are If case, in- plaintiff may costs such a it not recover follows notify profits. de- curred to avoid lost The failure prompt delivery circum- special fendant was dictated liability stances should relieve these damages. accordingly ordering I reverse, dissent and would sum- mary judgment for defendant.
Otis, (dissenting). Justice join
I the dissent of Mr. Justice Peterson.
Rogosheske, (dissenting). Justice join
I in the dissent Mr. Justice Peterson.
IN RE ESTATE OF ARCHIBALD G. BUSH. SPANNAUS, WARREN GENERAL, ATTORNEY AND ANOTHER v. HERSCHEL S. ARROWOOD AND OTHERS.
December 46067, 46079, 46103. Nos. Warren Spannaus, Attorney General, Mark, Richard G. Assist- ant General, Solicitor Stephen F. and Christine M. Befort I/wzzie, Special Attorneys Assistant General, appellant at- torney general.