148 Iowa 318 | Iowa | 1910
The negotiations and transactions involved in this suit began in October, 1900, and ended in January, 1903. The plaintiffs were manufacturers of rubber goods.
On October 30, 1900, the defendant wrote to the plaintiffs proposing to order 1,000,000 spools at $2.85 per thousand, one half of which should be delivered in 1901 as follows: January 1, 1901, 75,000, March 1, 1901, 75,000, May 1, 1901, 75,000, July 1, 1901, 75,000, September 1, 1901, 75,000, November 1, 1901, 75,000, December 1, 1901, 50,000, and the other one half to be delivered in the same manner in the year 1902, subject to the right of countermand 'by the defendant. On November 1st the plaintiffs replied to this letter by declining the proposition. Their letter, however, contained the following: “We will accept your order for 500,000 spools to be delivered as you specify during the year 1901 at a price of $2.85 per thousand, but under no circumstances could
The deliveries for September, October, November, and
After May 1, 1902, 152,000 were delivered by plaintiffs. On November 1st a strike of laborers went into effect, and the plaintiffs’ factory was closed and picketed, and so continued to the end of the year. On December 19, 1902, the defendant wrote the plaintiffs as follows: “Dear Sirs: We inclose check for $85.45 in payment of the items enumerated in inclosed statement. In a recent letter you advise us your draft for this amount was returned to you, but if so it was returned by the ‘candy side’ of our business — we did not see your draft. We did not expect to be drawn on, either, in view of the fact that your failure to ship us goods has cut off our source of revenue. This branch of our business is obliged to pay all its own bills, and the strike has cost us in delays, several hundreds of dollars. As we are afraid we can not use the 500,000 spools ordered about May 1st, last, you may cancel our order, and if we ‘recuperate’ we may place another order with you. If you could manage to ship our molds at once to the B. K. Goodrich Company, Akron, Ohio, you would ablige us. They have made us a price on 30,000 spools. If you ' could make the 30,000 spools
There is -some question of dispute as -to the dates of delivery involved in the second contract. The correspondence provided generally that other conditions should be the same as the former -order. This provision, however, could not literally be carried out. The former order provided for deliveries on January 1st, March 1st, and May 1st,
Tbe defendant’s counterclaim claimed for an alleged failure of delivery of 492,000 spools, and tbis was tbe claim submitted to tbe jury in tbe statement of issues by tbe court. Tbe theory of tbe defendant at tbis point was that all tbe deliveries that bad been made after May 1st were first applied upon tbe former contract, leaving 8,000 to be applied upon tbe second contract. Not only bad tbe plaintiffs delivered over 152,000 after May 1st, but they bad delivered also nearly 75,000 between January 1, 1902, and May 1, 1902, before tbe second contract was entered ■into. In bis theory of tbe case tbe defendant quite ignored tbe delivery of tbe 75,000 after January 1st and before May 1st, because bis damages were alleged to have accrued by tbe delay previous to such delivery. Under tbis method ■of computation urged by tbe defendant tbe plaintiffs were in default in delivery to tbe amount of 492,000. Tbis theory on tbe part of tbe defendant took no account of tbe cancellation of tbe order. It is true that defendant’s counsel do not in tbis court claim on that theory. Their argument here is based upon tbe theory that there was shortage of 140,000 under tbe first contract and of 150,000 under tbe second. Clearly tbe jury should have been instructed that tbe second contract was canceled in December, 1902, by tbe correspondence referred to.
Q. 43. State if you had received 500,000 during the aforesaid year from January, 1901, to January, 1902, in lots of 75,000 every sixty days, you could have sold that many in your territory. A. I certainly could have sold the goods if I had gotten them. Q. 44. State how many you could have sold during that year had you received them in lots of 75,000 the 1st day of January, 1901, and 75,000 on the first day of every other alternate second month thereafter in 1901. A. I could have sold at least 500,000 ventilators during the year 1901. Q. State if you had received 180,000 more, could you have sold them also? A. Yes ; I could. Q. State what your profits would have been on the 180,000 that you did not receive or sell, if you had received them and sold them. A. The profit would have been $16 per thousand on 180,000 that I did not receive. Q. If you had received during the period from May 1, 1902, to December 31, 1902, 300,000 spools, state whether or not could have sold all of them. ■ A. I could
We will not deal now with the technical accuracy of the instructions at this point. It is sufficient for our present consideration that, if these instructions had been followed, the defendant could not have recovered. And if but one finding was possible at this point, then the court should have made it, and should not have submitted it to the jury as an open question at all. The price to be paid the plaintiffs was $2.85 per thousand. The claim of the defendant is that, after incurring certain . additional expense thereto, he could have sold them all at a profit of $16 per thousand. This is an alleged profit at something over 500 percent above the price to be paid the plaintiff. Can it be said upon this record that such profit was “reasonable” and “certain,” and “within the contemplation of the parties?” Such alleged profit was not to be made upon a resale of the goods as received from the plaintiffs, but upon the goods as they would be after further labor and expense had been incurred thereon'. Granted that ordinarily the question of what would be reasonable and certain as profits is a question of fact, yet there must be purported evidence upon which to base a finding. We think such purported evidence is wanting in this record. The evidence of the defendant upon that question is clearly “uncertain and speculative,” nor do we see how it can be said, upon mere implication or inference, that such an'
The rule as to loss of profits -is that they are not to be rejected as being necessarily uncertain and speculative,
IV. The appellee moves 'to affirm the judgment in this case because of 'the failure of appellant to conform to the rules of this court in the preparation of abstract and argument. It must be said that appellant’s abstract and argument are fairly subject to criticism. We do not think, however, that an affirmance would be justified on that account. We think a sufficient penalty can be imposed by proper order for the taxation of costs. It will be the order of the court that appellants recover only one-half their taxable costs for printing in this court.
The judgment of the court below will be reversed, and the case remanded.