166 Ky. 108 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
This appeal is prosecuted from a judgment of the Estill Circuit Court in favor of the appellee, U. S. Coyle, and against the appellant, the Madison-Jackson-Est'ill Lumber & Development Company, for $336.79; the judgment having resulted from the confirmation of the report of a special commissioner, selected by agreement of the parties, to whom the case was referred for taking proof and reporting upon the issues involved. The litigation grew out of the alleged failure of appellant to carry out its part of a contract made with it by appellee July 1, 1910, by the terms of which the appellee, in consideration of the payment to be made him by appellant of six dollars per thousand feet for sawed lumber delivered by him at a point on Locust Branch in Estill County, where appellant had a tramroad, the money payable on the fifth of each month as the manufactured lumber was delivered, agreed to cut from a four hundred acre tract of land in Estill County and deliver to appellant’s portable sawmill on the land the logs out of which the lumber was to be made; to put the logs on the skids of the mill and, after their manufacture into lumber at the mill,, haul the lumber to the tramway of appellant some ínilés^ distant. He was to give his personal attention to the work: and furnish the necessary hands, teams, wagons and appliances for its performance, except that appellant agreed to furnish him a tram car for use on a tramway to be constructed to and through the standing timber. The contract also provided that all the timber mentioned was to be cut and logged on or before July 1,1911, as appellant’s right to remove it expired in August, 1911. The timber standing on the four hundred acre tract of land had been purchased by appellant from appellee’s father*
It was, in substance, alleged in the petition, hs amended, that appellee was prevented from completing
Appellant by answer traversed the material allegations of the petition, as amended, and by way of counterclaim alleged that appellee without cause failed to cut and deliver timber or lumber according to the contract; that by unskillful cutting of the timber and delay in removing it after cutting, much of it became sap rotten and otherwise injured, and that by his violation of the contract in the particulars mentioned appellant had been damaged in the sum of $1,100.00, for which judgment was prayed against appellee. The allegations of the counterclaim were specifically denied by reply.
Thereafter the cause, by agreement of the parties, was transferred to the equity docket and referred to the special commissioner, as before stated. The special commissioner, after taking* all proof offered by each of the parties, reported to the court his conclusions of law and fact; wherein he rejected the appellee’s claim of $500.00 asserted by way of damages for the loss of the use of his teams, expense in keeping them, and inability to obtain other work, resulting, as alleged, from appellant’s violation of the contract and his, appellee’s, deprivation of its benefits; also rejected the whole of the claim' to
It would be profitless to discuss in detail the evidence in the record. It shows that appellee did not, within the time fixed by the contract, or at all, complete the work it required him to perform, but that after it became apparent that be could not complete it during the year appellant granted him additional time to do so. This is clearly established by the evidence, as is the further fact that the contract in other respects was unchanged. It is appellee’s contention, and bis evidence conduced to show, that the contract could not be completed on bis part, either within the year as fixed by it or within the additional time given him, because of appellant’s violation of the contract in failing to make him the monthly payments during the progress of the work, as provided by the contract, and that such failures continued until appellee was forced to abandon the contract for the want of money to carry it out. On the other band, it is the contention of appellant, and its evidence tended to show, that it failed at no time to make such payments as appellee was entitled under the contract to receive; that be unnecessarily delayed starting and continuing the work and that when- be first complained of bis inability to further proceed with it for lack of means be was then overpaid and, in point.of fact, indebted to appellant. While the latter admits it granted him additional time to complete the work, it is its further contention that be thereafter did little work and finally abandoned the contract without cause.
The rejection by the commissioner of the item of $500.00 damages claimed by appellee was proper. While there was evidence to sustain his contention as to the loss which resulted to him from the non-use of his teams and equipment following his alleged enforced non-performance of the contract, it failed to show his inability to get other work for them, or that he was reasonably •diligent in trying to get such work; consequently he failed to show himself entitled to that item of damage.
We find no cause for disagreeing with the action of the commissioner in rejecting the claim to damages asserted by appellant’s counterclaim. If the latter’s violation of the contract in failing to make the payments to appellee required by its terms prevented its performance by him the items of damage set up in the counterclaim resulted from the fault of appellant and were, therefore, not recoverable.
As we are unwilling to disagree with the finding .of the commissioner and circuit court that appellee was compelled to quit work on the contract by reason of appellant’s violation thereof, we are not at liberty to disturb the finding of the commissioner and court that appellee was entitled on the quantum meruit to $336.79 for work which he actually performed under the contract down to fhe time of his enforced abandonment of it, resulting from appellant’s failure to comply with its terms. A party who has in part substantially performed his contract, and been prevented by the fault of the opposite party from fully performing it according to its terms, may recover on a quantum meruit for what he has done. In 9 Cyc., 688, it is said :
“According to the great weight of authority if a special agreement has been performed in part by the
If the principle above announced were not applied the party wrongfully terminating the contract- would thereby be allowed to enrich himself at the expense of the other. This doctrine has been approved in this jurisdiction in numerous cases. Escott v. White, 10 Bush, 169; Moffatt v. Mastin, 6 T. B. Mon., 600; Tandy v. Asher, 9 R., 150.
We think the evidence sufficiently shows that the $336.79 allowed appellee is reasonable in amount and not in excess of what he was entitled to receive by way of compensation for the work actually performed by him under the contract, and for which he was not paid. On the whole case we feel it our .duty to let the findings of the commissioner' and the judgment of the circuit court in approval thereof stand. While,- ordinarily, we are not bound, in an equitable action, to accept the findings of a commissioner or judgment of the court, in cases of conflicting evidence great weight will be accorded on appeal to the findings .of the chancellor on the facts, or where, on the whole evidence, the mind is left in doubt as to the truth, the chancellor’s judgment will not be disturbed; and, for a greater reason, this rule should obtain where the judgment of the chancellor is based upon and in accordance with those of a competent commissioner who acted upon the case. Moore v. Moore, 30 R., 383; Gilliam v. Guffey, 142 Ky., 631; Kilgore v. English, 142 Ky., 524; Ratliff v. Atkins, 142 Ky., 447.
No cause being apparent for disturbing the judgment, it is affirmed.