18 Colo. App. 73 | Colo. Ct. App. | 1902
Plaintiffs agreed to sell and deliver defendants .the output — with an immaterial exception — of their coal mine, which defendants were to accept and pay .for at a stipulated price; the coal to. be merchantable lump and nut; contract to run for two years. The gist of the contract was, plaintiffs to sell and deliver and defendants to accept and pay for certain coal. After receiving coal about four months defendants declined to take further. Plaintiffs claimed a breach of the contract and sued for damages. Defendants, among other defenses, denied that plaintiffs had .sustained damage. Verdict and judgment were for plaintiffs. Defendants appealed. On trial this instruction was given:
“If the jury shall find in this case a verdict in favor,of the plaintiffs, the measure of their damages is the amount of coal of the quality and character provided for in the contract which they were ablej ready and willing to produce and furnish to the defendants during the term of the existence of said -contract, operating their mine in the ordinary and usual way in which properties of that sort, are commonly operated, over and above enough such coal to supply the demand of the local market, also over and
“If under this instruction you shall find that the plaintiffs were thus able, ready and willing to furnish any amount of coal under the contract to the defendants, the difference between the contract price therefor and the cost of producing the same, that is,' the cost of producing the particular coal which was to be furnished under the contract, will be the measure of damages which the plaintiffs have sustained,if any, by reason of the defendants’ violation of the' contract herein sued upon. ’ ’
Defendants (appellants) contend that the general rule for measuring damages in actions therefor upon breach of an executory contract — as this — is the difference between the market value of the article contracted to be delivered and the price agreed to be paid therefor; that to justify another rule it should appear from the evidence that the article covered by the contract had no market value; that in this case the court erred in assuming that the article in question had no market value, and in departing the general rule for measuring damages in like cases.
It is, and ought to be, the intent of the law in cases such as this to indemnify the parties injured for damages sustained by the breach, but this should be done without unnecessary prejudice to defendants. Further, it is the duty of the party injured to make every reasonable effort to avert damage from the' breach.
“The statement that the fundamental principle of the law of damages is complete compensation to the party injured seems'to ignore, in terms at least, just' consideration of the rights of the party sought to be held responsible for' the damages suffered. It has
“As has already been seen, compensation is the basic principle of the law of damages, the measure thereof being limited and controlled and the elements of recovery primarily determined by this fundamental consideration. All the rules which have been laid down and .applied by the courts in this connection have been formulated and adopted with the view of compensating in money a party injured by the wrong of another, as fully as a just consideration of the rights of the latter will permit. ’ ’ — 8 Am. and Eng. Ency. of Law, 2d ed. 627, 632.
■ “The party who is exposed to loss by the violation of the contract by another party must exert himself to make the damages as light as possible; the law imposes this active duty upon him.” — Dolph v. Troy Laundry Machinery Co., 28 Fed. 553, 558.
“The law imposes upon the party injured by another’s breach of contract, or tort, the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible.” —Sutherland on Damages, vol. 1, 2d ed., § 88; Id., vol. 2, § 648.
“It is the market price, when there is one, at the date of the breach, which governs in the estimate of damages.” — Sutherland on Damages, vol. 2, § 652.
“Where the general rule concerning the market price applies the jury cannot give damages in excess of it. * * * ” — Sutherland on Damages, supra.
If the plaintiffs in the present case by making
Before the court in this case laid down any other rule for the measure of damages than the difference between the contract price and the market value at the time of the breach, it should have appeared from the evidence that there was no market value. This reasonable conclusion is sustained by the authorities. In Todd v. Gamble, 74 N. Y. Sup. Ct. Rep. 38, plaintiffs, engaged in the manufacture of silicate of soda, contracted to sell defendants, and defendants agreed to receive and pay for, all the silicate of soda which defendants should use in their business. Defendants declined to receive the soda,- plaintiffs sued for damages. Therein the court said:
‘ ‘ In this case the court- ruled that the measure of the defendant’s liability was the difference between the contract price and the cost of production, * * * The defendants requested the court to rule and charge that the burden was on the plaintiffs to show that the silicate of soda had no market value before evidence of the cost of production could be received or considered by the jury, which was also refused and an exception taken. * * * The burden was on plaintiffs to show that the article had no market value, and under the state of the evidence disclosed by the record, whether it had or had not such a value, was a question of fact for the jury, and not one of law for the court. In New York and Maine Granite Paving Company v. Howell (7 N. Y. St. Rep. 494) damages were sought to be recovered from a vendee for refusing to accept paving granite. The plaintiffs insisted that the actual value of the goods was to be*79 ascertained by proving the cost of production, while the- defendants contended that their market value was proof of actual value. The trial court held, as a matter of law, that the granite had no market value, and refused to submit that question as one of fact to the jury, which was held to be error.”
This case was again considered in 84 N. Y. Sup. Ct. Rep. 569, and in 148 N. Y. 382. The doctrine, however, announced in 74 N. Y. Sup. Ct. Rep., supra, was modified. See also Benj. on Sales, 7th ed. (Am. Note), p. 793; also Dolph v. Troy L. M. Co., supra, wherein it is said
“The error of the instructions in the present case consists in adopting these expressions literally and applying them to a case where the difference between the cost price and the contract price would exceed the plaintiff’s actual prospective loss, and allow him more than complete indemnity for the breach of the contract by the defendant. In the cases where damages have been sanctioned upon the basis of the difference between the contract price and the actual cost to the plaintiff of performance of the contract, there was no other criterion for ascertaining the extent of the plaintiff’s prospective loss.”
Where a different rule than the difference between the market value and the contract price has been adopted the article involved has had no market value, and the absence of a market value is the reason announced for departing the general rule. This was true in the leading case of Masterton v. The Mayor, 7 Hill 69. See comments thereon in Dolph v. Troy L. M. Co., supra.
In The Silkstone and Dodsworth Coal and Iron Co. v. Joint-Stock Coal Co., 35 L. T. N. S. 668, plaintiff contracted to deliver defendant coal. Defendant declined to receive. In an action for damages, as it appeared, there was no market value for that par
There was no evidence in the present case that the coal involved was without market value; there was positive evidence that it had such value. The court erred in assuming that it had no market value, and in adopting any other rule for measuring the damages than the difference between the contract price and the market value at the time of the breach in the absence of it having been shown and the jury having found that the coal was without market value. If the coal contracted to be delivered was without market value then it was incumbent upon the court to adopt some other rule than the difference between the market value and the contract price for measuring the damages which would compensate plaintiffs for their alleged loss and yet would impose upon defendants no unnecessary burden, observing the requirement that plaintiff should make every reasonable effort to escape injury from the alleged violation of the contract.
The judgment should be reversed.
Reversed.