124 Va. 221 | Va. | 1919
(after making the foregoing statement) delivered the opinion of the court.
[1, 2,1 This action was brought in June, 1916, by the Aetna Company against the Norfolk Company to recover damages for the failure on the part of the defendants to accept
The action of the trial court in refusing defendants’ instruction number three is assigned as error. This instruction was as follows:.
“The court instructs the jury that if they believe from the evidence that a contract existed between the Aetna Hosiery Company, the plaintiff, on the one hand, and the defendants on the other, whereby the said plaintiff agreed and undertook for the period of one year beginning February 1, 1915, to make and deliver to the said defendants 150 dozen pair of 76-needle socks per day, for the consideration of $1.65 per dozen, and that it, failed to make and deliver said socks ,at the time specified, and that said failure continued up to February 23rd, that then the defendants had a right to notify plaintiff not to ship any goods after that time, and their so doing did not constitute on their part a breach of the contract sued on, and the jury shall so find.”
In Frost v. Knight, L. R. 7 Ex. 111, it is said:
“The promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequence of non-performance; but in that case he keeps the contract alive, for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify Mm in declining to complete it.”
In Bernstein v. Meech, 130 N. Y. 354, 358, 29 N. E. 255, 256, it was said:
“But whatever view may have been taken of the right of the defendants to treat the contract for the purpose of its performance as at an end, and to act upon that assumption when they received the plaintiff’s letter, they disposed of that question by their letter to him. By this it appeared that the defendants elected to keep the contract in force for the purposes for which it was made. This operated alike upon the rights of both parties, and the plaintiff was justified in so understanding it. In that view the contract was kept alive until the time arrived for performance and the
The defendants’ letters of February 24, 1915, and April 12, 1915, also seem to indicate that the defendants intended to insist on the performance of the contract, and the testimony of W. P. McClure, who was associated with the defendants in this contract, and who was examined in this cause as witness on their behalf, is to the effect that between 20th and 25th of April, 1915, he had a talk with Holden “with reference to getting of any of these goods,” but could not get them. Hecht also testifies that he tried to get all machine goods from the plaintiff after April 12, but without success, and Holden testifies that the defendants attempted to get goods from him on this order in April, 1915. We have no difficulty, therefore, in arriving at the conclusion that the defendants wlaived whatever rights of rescission they had for failure of the plaintiff to make deliveries prior to February 23, 1915.
“The court instructs the jury that if they believe from the evidence that the contract mentioned in the declaration, was entered into between the plaintiff and defendant and that the plaintiff was ready and willing to perform the same, and that performance thereof was prevented by defendant without fault of the plaintiff, then there was a breach of the contract by defendants.”
There is omitted from this instruction the word “able,” which should have been inserted in order to make it accurate. It was necessary that the plaintiff should have been not only “ ready and willing to perform,” but also able to perform the contract. But no such objection was raised to the instruction either in the trial court or this court, and.
“The court instructs the jury that if they believe from the evidence that the plaintiff is entitled to recover in this case, then they should proceed to assess the damages to which it is entitled and the court further instructs the jury that in ascertaining such damages, they should first determine from the evidence in this case what the entire costs would have been to the plaintiff to complete its contract with the defendants, and after ascertaining the costs of completion, to deduct the same from the sum which the plaintiff would have been entitled to receive from the defendant under the terms of the contract, if the same had been performed. From this result they should then deduct any profits which the evidence shows were made by plaintiff by using the 76
The objection to this instruction is that the contract calls for the output of 20 machines, when the evidence fails to show what that output was, or what the profit was per dozen, and hence the jury did not have before them sufficient data upon which to base a verdict. The defendants’ letter of January 5th says: “You will also purchase immediately up to 20, 76 needle machines or a sufficient quantity of same to. make a product of 150 dozen per day of wool half hose.” .The plaintiff’s letter of acceptance of January 15th, accepted the order “to make you one hundred and fifty (150) dozen per day, or the product of twenty (20) Banner machines.” Both parties calculated that the twenty machines would make one hundred and fifty dozen per day. The price to be paid for the goods was fixed by the contract. Holden testified for the plaintiff that the price of the material, and the costs of manufacture amounted to 96 55/100 cents per dozen, and an itemized statement of how the amount was arrived at was laid before the jury. Another witness, disinterested, testified that the prices given by Holden were reasonable. While Holden had not actually tested the capacity of the machines, because there had been no necessity to do so, he estimated their capacity at one hundred and fifty dozen per day, and, figuring on this basis, placed the plaintiff’s loss of profits at $26,255.62. The expert placed on the stand by the defendants thought that the product of the machines could not be safely placed at over 500 dozen per week. Counting five working days per week, as is done by the plaintiff in error, that, would be 100 dozen per day. If this be taken as the proper basis, it would reduce the plaintiff’s profits by one-third, and ascertain its loss, on the basis of profits testified to by Holden, at $17,508.75, but from this there were to be some deductions
ri2] The last assignment of error is that the court erred in refusing to set aside the verdict on the ground that it was contrary to the law and the evidence. As the evidence appears in cold print, without the advantage possessed by the jury and the trial court, we probably wouldi not have found or approved the verdict which was found by the jury and approved by the trial judge, but that will not justify this court in setting aside the verdict, unless, after considering the case as on a demurrer to the evidence by the plaintiffs in error, we are of opinion that the verdict is without evidence to support it, or is plainly contrary to the evidence. Jackson v. Wickham, 112 Va. 128, 70 S. E. 539, and cases cited.
“The court instructs the jury that in order to constitute a contract there must be an agreement of the parties, or ■meetings of the minds—upon the particular question at issue. A mere proposal, without an acceptance would not create a contract.”
By instruction D, given for the plaintiff, the court told the jury that if they believed from the evidence that no time was specified during which the plaintiff was to furnish the 128 and 144 needle goods, it had the right to terminate the order at the end of any week. Instruction 5, given for the defendants, was „as follows:
“The court instructs the jury that if they believe from the evidence that the plaintiff understood that the contract between it and the defendants only contemplated the making and delivery by the plaintiff at the rate of 150 dozen per day of half hose made on 76 needle machines and the defendants on their part understood that the contract be
The verdict of the jury, in effect, sustained the contention of the plaintiff, and with that finding we'cannot interfere. This finding eliminates any further consideration of the 128 and 144 needle goods.
As hereinbefore pointed out, nondelivery prior to February 23rd was waived, but the jury had further to consider whether or not there was a breach of the contract by the defendants on or after February 23rd which gave the plaintiff a right of recovery. On February 24th the plaintiff tendered to the defendants a sample of the half hose to be manufactured accompanied by a letter, skying, “These are scoured very hard and as you see are very dry, so you will find they will gain nearly two (2) ounces going across the water. They are very clean.” These samples the defendants rejected and returned because they did “not like the look of this 'dozen goods at all.” ■ Thereafter the plaintiff made no enquiry as to any other objections to the sample, furnished no other sample, made no other tender or delivery under the contract and manufactured no more goods under the contract, but relied upon what it had done as a sufficient tender of performance on its part. Viewed from the standpoint of a demurrer to the evidence, the defendants
“I am now very much at unrest on account of the lack of business for export, as I have such a large amount of my finances tied up in this business at this time and I am unable to make any further moves until future business develops.”'
In reply to this statement, Holden on March 30th wrote to Hecht as follows:
“We, of course, bought these machines with your promise to pay for them and also to take the production for one year! You have apparently disregarded taking the goods as agreed; and we hope you do not think of not paying for the machines.”
On April 12th Hecht wrote to Holden:
“So far we have not been able to get the new orders on heavy wool socks, on a satisfactory financial basis, but I haven’t any doubt that during the year we will get a great-deal of business.”
Holden wrote Hecht on April 17th: •
“You know you told me if we would buy these machines you would take our production on them for one year even if you could not use them during the summer.”
Hecht wrote Aetna Hosiery Company oh April 21st, as follows:
“I am in receipt of yours of the 17th. We have no orders on heavy w.ool hosiery at this time, but we expect to have very large business later on in the season, at which time,*247 of course, I could readily use the output of your 76 needle machines. Until that time, however, I do not want any of the goods, and I am sure you don’t want me to think about taking them unless I can sell them.”
On May 17th, Hecht wrote Holden:
“It seems to me also that there should be an understanding between us that if we desire the product of these machines you will give us the same. We have booked some very large business recently, but it only covered, so far as the 84 needle product is concerned, actual merchandise that we had already made up in stock, but we have every reason to believe that we will have in the very near future some very large business for delivery September, October and November, of this year, in which case I will very probably need your assistance, and will advise with you concerning same later on. There is one point, however, that I might as well speak of at this timé, and that is that the day of very long profit on the export hosiery business has passed. * * '* It is no longer possible for me to give long profits to the manufacturer or to get long profits for ourselves.”
On May 19th Mr. Holden replied to this letter and said in part:
“In letters since, it sounds as though you wanted us to feel you were doing us a kindness in paying for these machines. At the time, you were very anxious to get goods, and make the profit, and you were willing to concede most anything to get the goods. But as soon as business began to slack up you then refused to take the goods.”
In reply to this letter Hecht, after acknowledging receipt of the letter of the 19th calling Hecht’s attention to the refusal to take the goods, Hecht said:
“Now, as regards the output of these machines, of course you will operate them, and I did not mean in my previous letter that you should depend upon us for the sale of the output of them. You, of course, will sell all you can, and*248 if I can turn any business over to you that you want on new orders, which we, by the way, have none at this .time, certainly I will let you hear from me, but I would say this. I haven’t any doubt at all but what there is plenty of business coming this fall on wool socks for these machines.”
Upon this and other evidence in the case, the jury found a verdict in favor of the plaintiff, and with this verdict we have no right to interfere. Upon the whole case, we are of opinion to affirm the judgment of the circuit court.
Affirmed.