130 Ky. 51 | Ky. Ct. App. | 1908
Opinion of the Court by
Affirming.
This is an action for the breach of an alleged contract between appellee and appellant for the sale and delivery by the former to the latter of 4,000 cubic yards of broken rock to be used in constructing lock and dam No. 6 in Green river. Appellee alleged in his petition that appellant, a corporation, had secured the contract from the United! States government to construct the lock and dam in question, and that in the construction of this work is needed about 4,000 cubic yards of broken stone of dimensions not less than one-half cubic foot ñor larger than what a man • could handle; that he entered into a contract with appellant by which he undertook to furnish it with the stone, and it agreed to pay him therefor 60 cents per cubic yard delivered on barges in Green river; that, after making this contract with him, the appellant wilfully and arbitrarily broke it, ahd refused to permit him to go on with it. The damages were laid in the petition at $1,250, and were said therein to consist of $250 expended in opening up the quarry in order to get out the stone, and $1,000 which the appellee could have made in profit had he been allowed to execute his contract as made with appellant. The appellant in its answer denied the existence of the contract, and this was the real issue between the parties, although there are several questions dis
The mere fact that the oral contract was tó be afterwards reduced to writing does not render it unenforceable. Bell v. Offutt, 10 Bush, 632; Mattingly v. Springfield F. & M. Ins. Co., 120 Ky. 768, 26 Ky. Law Rep. 1247, 83 S. W. 577. If the minds of the parties had met, and nothing else was to be agreed upon, the mere fact that the parties were to reduce
Nor do we think the court erred in not submitting to the jury the question as to whether or not appellee had prepared and tendered a bond with surety conditioned for the faithful performance of the contract. Appellant’s evidence tended to show that a bond was to be given, and, while appellee denied that there was such an agreement, he admitted that he sometimes gave bond for the prompt performance of his contracts, and would have had no objection to giving bond for the performance of the contract under consideration. Appellant did not deny that it agreed upon the terms of the contract as alleged by appellee, or that these terms were dictated to the stenographer and taken down by him in shorthand; but it insists that there never was a contract, or, if there was one, it was rescinded by the demand of the appellee for the modification thereof. It does not deny that it made arrangements for the obtention of the desired amount of broken stone from another party, and that after it was impossible for it to carry out its contract with appellee. In other word's, it does not dispute
We think the court correctly held that the question between the parties was whether or not there was a contract as claimed by appellee; and, if so, the amount of damages appellee sustained by reason of the breach. Hoilerbach’s own testimony established appellee’s contention of the existence of the contract, and his only excuse for the breach was that his stenographer had told him when he came hack from the quarries that appellee had said to him (the stenographer) that, unless there was a modifying clause inserted in the contract, he would not sign it. Being told this, he says he immediately, without notifying the appellee, made a contract with a different party for supplying the stone that appellant needed. Hoilerbach’s position in this matter is not a very enviable one. He knew that what his stenographer told him was not correct, because he had been at the quarries with appellee since the supposed conversation between the stenographer and appellee had taken place, and he knew that appellee was preparing to go on with the contract, and had there asked him why the written contract had not been sent to him, and he knew that he had promised appellee that the writing should go to him at least by the following Tuesday, and yet, knowing that appellee considered that he had a contract with appellant, and was going on at some outlay to prepare to execute it,, he, without any notice to appellee, made a contract, as said before,
We do not think the first instruction of the court assumes that there was a contract between appellant and appellee. If this were true, it would be erroneous, because the existence of the contract was the real issue between the parties. Instead of assuming the existence of the disputed contract, the court expressly told the jury that if they believed from the evidence that the appellee and appellant made a contract as set out in the petition, and appellant broke it, and that the appellee was ready and willing at all times to execute it, then h.e was entitled to damages from the appellant.
The court did not err in not instructing the jury that it was the duty of the appellee, even if there was a breach of the contract, to use reasonable diligence to sell the stone contracted for to other parties. The principle for which counsel for appellant contend has no application to a contract like the one under discussion. It is true, where there is a contract for personal services, and there is a breach, the-party whose services are to be engaged may not sit down and supinely permit the amount of his damages to grow. It is his duty to seek employment elsewhere, and the other party is only liable to the extent of the injury after the exercise of ordinary diligence by the complainant to obtain other employment still leaves him a sufferer by reason of the breach. In the case in hand the appellee had a rock quarry, and, although it might be true that he could have sold 4,000 cubic yards of rock to another party, that would not have diminished his damages in not being allowed to carry out his contract with appellant, because he' was entitled, if he could, to sell all the rock in
Upon the whole case no substantial error was committed against appellant, and the judgment is therefore affirmed.