Himrod v. Kimberly

219 Pa. 546 | Pa. | 1908

Opinion by

Mr. Justice Potter,

This action was brought to recover damages for the breach of a contract to deliver iron ore. The contract was set out in the letter of Himrod to Kimberly, dated October 22, 1892, and in the reply from Kimberly, dated November 1,1892. Under the express terms of the contract, no ore was to be delivered until May, 1893. This was recognized by Himrod in his letter to Kimberly, dated April 29, 1893, in which he wrote : “ According to the terms of our agreement you were to commence delivering the ore from the Biwabic Mine in May.” The ore was to be delivered at the "West Duluth Eurnace, and in this letter of April 29, Himrod directs that it be consigned to the Minnesota Blast Eurnace Co., West Duluth, Minn. But before any ore had been delivered, the furnace company failed, and the West Duluth furnace ceased to be operated. On May 11, 1893, Himrod wrote Kimberly, “ On account of the temporary stoppage of the furnace at West Duluth, we will not want any ore shipped on account of our contract with you.” The stoppage of the furnace turned out to be, not temporary, but permanent. But the letter contained the direct statement that no ore was wanted on account of the contract. It is true that Himrod went on to say that if Kimberly desired to ship, he would make arrangements to take care of the ore at lower lake ports. But it -was no part of the contract that Kimberly should furnish ore to be used at other places, and the terms of the letter merely make this course optional with Kimberly. Kimberly did not see fit to accept the suggestion to ship ore to other points or to furnish ore to Himrod, notwithstanding the failure of the furnace company, and the stoppage of the plant. It would have been strange had he done so. Why should he ship ore to an insolvent corporation, which had shut down its furnace, and made an assignment for the benefit of its creditors ? There is no suggestion that the furnace company was at that time, or ever afterwards, able to pay the cash portion of the purchase price or that it was ever in condition to use the ore in its furnaces. It would seem that the trial judge might very properly have directed a verdict for defendant on the ground that the evidence showed that the contract was rescinded by the plaintiff. It is argued forcibly by counsel for appellant that a demand was necessary before Kimberly was required to ship the ore, and that a demand and refusal were necessary before Kimberly was liable in damages for breach of the contract. If that be so, the testimony of appellant shows a demand and refusal in 1893, more than six years before suit was brought, leaving out of sight the letter of April 29, 1893, which as the court suggested in its charge, would have been sufficient demand had it not been modified by the later letter of May 11. But Himrod testified that he met Kimberly once or twice in 1893, and gave the substance of the conversation as follows : “ I was desirous of, as I explained to him, of having the ore shipped in order that the margin between the cash payment to him and the value of the ore, could be used to pay the debts I had contracted in taking the stock in the furnace. And his reply always was, ‘ I cannot.’ ” And then Himrod adds that he concluded that Kimberly was telling the truth when he said he could not ship the ore, and Himrod dropped the matter. But this was plain evidence of demand and refusal at that time. It was not until 1899 or 1900 that Himrod again approached Kimberly on the subject and not then with a demand for delivery of ore, but because as he said, “ I wanted him to make good my loss in subscribing for the stock.” Kimberly finally refused to pay anything, and afterwards this suit was brought, in which plaintiff claims damages for a breach of contract to ship iron ore. There was no contract to indemnify plaintiff against loss on the stock, and the only way in which the fact of loss in that respect could be material here, would be as evidence of the amount of damages sustained by the alleged failure to furnish ore. The testimony of the plaintiff, that in 1893 the defendant said repeatedly that he could not ship any ore under the contract, seems to us to demonstrate that whatever breach of contract there was, in this case, was complete in the. year 1893, under every aspect in which the evidence can be viewed.

But the ground upon which the trial judge rested his instructions to the jury, was that granting there was a breach of the contract, it occurred more than six years before suit, and the bar of the statute of limitations had intervened. We think the point was well taken. The contract was to furnish ore or to begin furnishing in May, 1893. Unless there was legal excuse, Kimberly broke the contract when he failed to furnish ore in that month. But even by plaintiff’s story Kimberly was not at fault in failing to deliver then, and it is settled law in Pennsylvania that a party cannot stop the running of the statute of limitations by any arrangement for his own convenience: Steele’s Administrators v. Steele, 25 Pa. 154.

In Waterman v. Brown, 31 Pa. 161, Chief Justice Lowrie said (p. 165): “ The limitation of the statute is not usually to be extended by the negligence of the party who claims to be excused from it. A debt is not saved from it because made payable on demand. It is often said that, where a demand is necessary to the right of action, the statute does not begin to run till the demand is made. But this almost sets aside the statute in such cases, and hence it is decided, that a demand will be presumed to have been made in a reasonable time.”

In Barnes v. Hardware Co., 203 Pa. 570, defendant gave a note for the purchase money of real estate, payable in six months, and containing the following clause : “ Provided all liens not assumed in the purchase of the warehouse property from the said Pickett and Company, are then paid, or removed, and if not then so removed, payment is to be made as and when they are removed.” It was held that the statute began to run as against the entire note at the end of the six months, notwithstanding the fact that the liens referred to in the proviso had not all been paid and removed at that time. The present chief justice said (p. 573): “ The disability to sue until the liens were removed was not a privilege of the payee to delay its running, but an obligation precedent to suit by him, a disability of his own making, removable at any time by his own act.”

Acquiescence, with knowledge, is equivalent to demand and refusal: Mifflin County Nat. Bank v. Bank, 199 Pa. 459. In this case there was during the period froth 1898 to 1901 admitted knowledge on the part of plaintiff, that defendant could not, or would not, make delivery of the ore as provided in the original contract. This determination was known and acquiesced in, without any attempt to enforce the agreement, until the bringing of this suit. The delay was too great. The bar of the statute of limitations had intervened. The assignments of error are overruled and the judgment is affirmed.