148 S.W. 1109 | Tex. App. | 1912
The appeal is from a judgment in favor of appellees against appellant for the sum of $1,102 as the damages suffered by the former because of a breach by the latter of its undertaking to receive and pay for certain machinery it had agreed to buy of appellees.
The contract breached by appellant was in writing, and in the form of an order for the machinery. So far as material to questions made, the order was as follows:
"Name of purchaser, Palestine Ice, Fuel Gin Company. Factory order No. _____. Entered Order Book, page _____. Acknowledged to salesman, _____. Acknowledged to purchaser 2/4/. Entd. 197. Salesman, F. James. Date, 2/1/1911. Order for machinery.
"The undersigned hereby purchase from Walter Connally Co., Inc., Tyler, Texas:
"4 70-saw Pratt huller gin with Brown drive;
"4 70-saw Class C feeders with tilting board;
"1 280-saw battery condenser;
"2 Iron dust flues;
"1 280-saw steel lint flue;
"1 double box hydraulic (belt driven pump) press with friction tramper, with all fittings (750 pound bale);
"1 12" Class D galvanized steel elevator complete (8");
"1 13" seed-blowing elevator complete (8");
"4 34x8 pulleys for gins;
"1 38x10 pulleys fan C shaft;
"1 8x4 pulleys seed conveyor;
"1 8x4 pulleys seed feeder;
"1 6x3 pulleys condenser;
"1 5x2 pulleys A. C. O. valve;
"1 5x2 pulleys feed conveyor;
"With all leather belting according to plan of Continental Gin Company, to be shipped to Palestine on or before the 1st day of June, or as soon thereafter as practicable, which we agree to receive on arrival and pay freight charges on same and in addition thereto, to pay to Walter Connally Co., Inc., at Tyler, Texas, $2,400.00 cash on delivery. $2,400.00 Total. F. o. b. Palestine.
"In case we fail or refuse to receive said machinery, or any part thereof, before or after shipment, or on arrival, we agree to pay Walter Connally Co., at Tyler, Texas, twenty-five per cent. of the amount of this contract, and ten per cent. thereon as *1111 attorney's fees, if placed in the hands of an attorney for collection, as stipulated, as liquidated damages, and not as a penalty. It being the express intention of the parties to this contract that said amount of damages shall be ascertained, stipulated and liquidated damages agreed on for our said breach of this contract.
"Palestine Ice, Fuel Gin Co.,
"Geo. Pessoney, Prest."
In their petition appellees alleged that the machinery was what was "known to the gin trade as a special outfit, and was not such machinery as is usually and customarily carried in stock by factories and machinery houses, and was of such character that the same had to be manufactured and made to order." Appellant specially excepted to said allegation, "because," quoting from its answer, "it fails to set out such facts as show that said order was a special order, and fails to show wherein said contract calls for a special order, and fails to show the items of said machinery which amount to a special order, and fails to show the nature and character of such special order, or that it was a special order." The action of the trial court in overruling the exception is made the basis of an assignment in appellant's brief. The assignment indicates that appellant construed the allegations excepted to as an attempt by appellees to set up a right to recover special damages. We do not understand that to have been the purpose of the allegations. Appellees did not seek, and were not awarded, special damages. They sought and recovered only such damages as were the "ordinary, usual, and commonly to be expected consequences" (2 Mech. on Sales, § 1757) of the refusal by a purchaser to receive, and pay for property he had agreed to receive and pay for.
The trial court found as facts established by the testimony: That appellant made the order as set out above. That to fill it appellees on February 4th ordered the gin outfit therein described of the Continental Gin Company at Dallas. That on May 23d appellant wrote appellees not to ship the machinery it had ordered, unless they were willing to allow a rebate of $200 on the contract price which it claimed appellees' salesman, one James, had agreed to give it. That about June 1st the machinery was shipped from Dallas to appellant at Palestine. That when the machinery reached the latter place appellant refused to receive and pay for it. That thereafterwards, on July 3d, and for 10 consecutive days after that date, appellees, by publication made in a daily newspaper at Palestine, advertised that the machinery would be sold on appellant's account at the freight depot in Palestine of the International Great Northern Railroad Company on July 15, and sent copies of the advertisement to appellant and its attorneys; that at a sale openly and fairly made in accordance to the advertisement said Continental Gin Company was the highest bidder, and the machinery was sold to it for the sum of $1,200. None of the findings specified above are attacked by any of the assignments in appellant's brief. The court further found as facts established by the testimony: (1) That the machinery ordered by appellant was "a special order outfit, consisting of machinery that had to be manufactured and made up specially to fill" its order, "and was not such machinery as was usually and customarily carried in stock." This finding is attacked by appellant as not supported by the testimony. (2) That appellant's letter of May 23d telling appellees not to ship the machinery unless they were willing to allow the rebate claimed was received by appellees before the machinery was shipped from Dallas, but after it had been manufactured and was practically ready for shipment. This finding is also attacked as not supported by the testimony, appellant's contention being that there was no testimony showing "when the machinery was made, nor when it was ready for shipment." (3) That a rebate as claimed by appellant had not been promised by appellees or their agent James. This finding is attacked as against the preponderance of the testimony. (4) That because the machinery was "a special order lot of machinery, made especially in accordance with the contract sued on, it had no market value, either at Palestine or Dallas, but its value was the same at both points." This finding also is attacked as against the preponderance of the testimony. We think the several findings objected to were authorized by the testimony, and therefore overrule the assignments presenting the objections made to them.
On the facts found by him as stated, the trial court concluded as matter of law: (1) That the sum named in the contract as the damages to be recoverable by appellees in the event of a breach thereof by appellant should be treated as a penalty, and therefore should not be regarded as measuring their damages. (2) That appellees were entitled to recover the sum of $1,102, the difference between the contract price of the machinery and the sum they sold it for, less $98, the cost of transporting the machinery from Dallas to Palestine. Appellant insists that the conclusions as to the law of the case reached by the trial court are erroneous.
In determining whether the sum named in the contract to be paid in the event of a breach thereof should be treated as liquidated damages or as a penalty, the court had a right to consider "the nature of the contract, the terms of the whole instrument, the consequences naturally arising from a breach of its stipulations, and the peculiar circumstances surrounding the transaction." Keeble v. Keeble,
While the correctness of the conclusion be reached that the sum should be treated as a penalty might perhaps be vindicated on the ground that the consequences resulting from the breach complained of authorized it (Collier v. Betterton,
From the facts found by the trial court, it appeared that the ownership of the machinery never passed to appellant. Gammage v. Alexander,
The machinery having then been manufactured and "practically ready for shipment," appellees might have treated it as property belonging to appellant, sold same as on its account, and then recovered as their damages a sum representing the difference between the price it brought and the contract price. Waples v. Overaker,
The measure of their damages in that event we think was the one applied by the trial court, to wit, the difference between the value at that time of the machinery and the contract price thereof, less any enhancement of that difference due to unauthorized conduct on their part after the order was counter-manded. To determine this difference, appellees had a right to sell the machinery, and in that way ascertain its value. Appellant insists, however, that appellees did not have a right to ship the machinery to Palestine, and then sell it. Whether appellees had such a right or not it seems to us would not be of importance, unless it appeared that appellant was injured by its exercise. No testimony showing the machinery to have been worth more in Dallas than in Palestine was offered, and the court found as a fact that it was not worth any more in Dallas than in Palestine. The court further found that the sale in the latter place was fairly and openly made after due notice that it would be made had been given to appellant. These findings are not attacked by any of the assignments. We are inclined to think the question appellant makes was involved in the finding that the sale was fairly made, and, that finding not having been attacked, that we are not called upon to consider It. And, if it is not involved in that finding, we think it need not be determined, because if the machinery was worth in one of the places as much as it was worth in the other of them, and the sale was fairly made, it should not be assumed that appellant was injured because the sale was made in the wrong place.
The judgment is affirmed.