189 Mo. App. 654 | Mo. Ct. App. | 1915
This is an action for the alleged breach by defendant of a contract for the sale by plaintiff to defendant of a carload of potatoes. There was a verdict below for plaintiff, but the court, on defendant’s motion, set it aside and granted a new trial on the ground that the jury had awarded damages in a sum not warranted by the evidence and contrary to the court’s instruction relative to the measure of damages. Prom the order granting a new trial plaintiff prosecutes this appeal.
Plaintiff is a corporation engaged in the wholesale produce business in the city of St. Louis, and defendant is a corporation engaged in a like business in Minneapolis, Minnesota. On June 20, 1911, a contract was entered into between plaintiff and defendant, by exchange of telegrams, for the sale by plaintiff to defendant of a carload of potatoes known as Oklahoma Triumphs. The contract was made at plaintiff’s solicitation, several telegrams passing between the parties on the same day. Plaintiff quoted “Triumphs” at $2.05 per bushel “f. o. b. .St. Louis,” provided defendant would agree to accept the potatoes on arrival at Minneapolis without complaint, plaintiff stating that the crop was short and that there was a demand for more than could be obtained at this price. However, in a later telegram plaintiff stated that the potatoes were “Oklahoma stock, quality good, but only medium size;” and defendant thereupon telegraphed plaintiff to ship the car “if dry stock, quality as described.” ■
The evidence discloses that the contract price amounted to $881.15. The potatoes were resold, in the manner above stated, for the gross sum of $577.80'. The freight and selling charges amounted to $103.98, leaving $473.82 as the net amount realized, which latter sum was remitted to plaintiff. The verdict of the jury was for $407.33, being the contract price of $881.15, less $473.82, the amount received by plaintiff as the net proceeds of the resale.
There is a sharp conflict in the evidence as to the size of the potatoes, this being the only question of fact concerning which any serious doubt may be entertained. Plaintiff’s evidence, consisting in part of the testimony of inspectors who had examined the contents of the car for- a company that had originally purchased the potatoes in Oklahoma and sold them to plaintiff, was to the effect that the potatoes were sound Oklahoma Triumphs of “medium size.” Defendant’s evidence on the other hand, went to show that they were too small to be classed as medium in size, and so small as to be practically unmerchantable. Such, in effect, was the testimony of a Mr. Lucas who acted for the company that resold the potatoes, and who stated, in substance, that though the quality was good, he was
However the jury, by their verdict in plaintiff’s favor, have found that the potatoes were in fact of ■ medium size, as called for by the contract; and this is now to be regarded as an established fact in the case.
In general, when a vendee has breached a contract of sale and refused to accept the goods contracted for, the vendor has his choice of the following remedies, viz.: (1) He may store or retain the property for the vendee, and sue for the entire contract price; (2) he may keep the property as his own, and recover the difference between the market price, at the time and place of delivery, and the contract price; (3) or he may resell the property, acting as the vendee’s agent and taking requisite steps to protect the vendee’s interest, and recover the difference between the contract price and the price obtained by such resale. [See Dobbins v. Edmonds, 18 Mo. App. 307; Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 551; St. Louis Range Co. v. Mercantile Co., 120 Mo. App. 438, 96 S. W. 1040; Koenig v. Boat Mfg. Co., 155 Mo. App. 685, 135 S. W. 514; Oehler v. Fruit Co., 162 Mo. App. 446, 142 S. W. 811.]
Plaintiff here adopted the third of the above-mentioned remedies. That is to say plaintiff, with notice to the defendant, caused the property to be sold for the best price obtainable therefor, deducted the net proceeds of such resale from the contract price and brought suit for the remainder of the contract price, as being the damages entailed by the breach. And the verdict of the jury is precisely this difference between the contract price and the net proceeds of the resale.
The court, of its own motion, instructed the jury that if they found for plaintiff their verdict should be for the difference between the contract price and the
But we are of the opinion that the verdict should have been allowed to stand. In a case of this character, it is unquestionably the law that where the vendor, in good faith, and upon notice to the vendee so that the latter may protect his interests, resells the property, at the best price obtainable therefor, he may recover the difference between the proceeds of the resale and the original contract price. It is frequently said that the price brought at the resale is to be regarded as determining the market value of the property. [See Rickey v. Tenbroeck, 63 Mo. 563; Black River Lumber Co. v. Warner, 93 Mo. 1. c. 586, 6 S. W. 210; Anderson v. Frank, 45 Mo. App. 482; Anderson Carriage Co. v. Gilmore, 123 Mo. App. 19, 99 S. W. 766.] But however this may be, it is clear that the vendor is entitled to pursue this course if he sees fit, and thus make himself whole, though the property may bring at the resale less than what appears to be the market value thereof. But on the other hand it is held that if no notice of the intended resale is given to the vendee, he is not precluded thereby; and if the property sells for less than the market value, the vendor’s damages will be the difference between the contract price and the market value at the time and place
It is true that the rules relative to the measure of damages for breach of contract to sell personalty are not absolutely inflexible, and must be applied with regard to the facts and circumstances surrounding the particular ease. [See Campbell v. Woods, 122 Mo. App. 1. c. 725, 99 S. W. 468.] But the aim of the law in such cases is compensation, to be secured in a practical way to the party damaged by the breach. [Crown Vinegar & Spice Co. v. Whears, 59 Mo. App. 1. c. 496.] “The object of the law is to place the party in the same condition that he would have been if the contract had been performed.” [Black River Lumber Co. v. Warner, supra, 1. c. 390.] In this ease it is quite evident that if plaintiff shipped potatoes of the requisite character, and if it was defendant that breached the contract, as the jury found, then plaintiff can be made whole only by an award of damages equal in amount to the verdict below. Nothing less than this would be compensation, as the matter now stands; and, as indicated above, the course pursued by plaintiff is one which the law sanctions.
The learned trial judge was of the opinion that if the jury found that the potatoes were of medium size, plaintiff’s damages were to be measured with reference to the market value of potatoes of that character, appearing from testimony adduced in defendant’s behalf. While this is in accord with the evident theory underlying the rule permitting the vendor to fix the amount of his loss by a resale properly made, it fails to reckon with the more practical aspect of the remedy thus afforded.
It is true that when the potatoes are found to have been such as were called for by the contract, they are to be so regarded for all purposes in the case. However, the jury were not bound to accept the testimony
All of these things were matters to be considered by the jury in passing judgment upon the disputed question whether or not the potatoes complied with the contract. "With this determined in plaintiff’s favor, and it appearing that the property had been resold, after due notice to defendant, for the best price obtainable therefor, plaintiff’s damages were, properly assessable at the difference between the contract price and the price obtained at the resale — though the latter was less- than real market quotations upon such potatoes as these were thus necessarily found to be.
Under the circumstances it matters not that the instruction on the measure of damages did not in terms
Appellant suggests that the new trial might properly have been granted on the ground that the demurrer to the evidence should have been sustained. But it is clear that the case was one for the jury and the court’s action appealed from may not be sustained on this ground.
It follows that the order granting a new trial should be reversed, and the cause remanded-with directions to reinstate the motion for a new trial, overrule it, and enter judgment for plaintiff on the verdict. It is so ordered.