16 Ind. App. 362 | Ind. Ct. App. | 1896
The only error complained of in this case is the alleged error of sustaining the demurrer to the appellant’s amended complaint. The complaint alleges, in substance, that on the 26th day of October, 1892, the plaintiff and defendants entered into a written agreement, a copy of which is filed with the complaint, by the terms of which the plaintiff was to furnish the defendants with 500 cords of 128 cubic feet, or 2,400 pounds each, of prime chestnut bark, to be peeled during the spring of 1893, and straightly and solidly loaded in cars and consigned and delivered to defendants at Columbus, Indiana, on or before November 1, 1893. In consideration thereof the defendants were to pay the same price as the ruling price in Cincinnati, in the spring months of 1893, together with such additional sum as it would require to deliver the same in Columbus, Indiana, over and above what it would require to deliver it in the city of Cincinnati, Ohio; that, confiding in the undertakings of the defendant, as set forth in said agreement, the plaintiff,
The contract, a copy of which is filed with the complaint, is as follows:
“Agreement, made this 26th day of October, 1892, between J. F. Ridgley, of Milton, West Virginia, and W. W. Mooney & Sons, of Columbus, Indiana, witnessth: That said J. F. Ridgley agrees to furnish said W. W. Mooney & Sons with 500 cords of 128 cubic feet, or 2,400 pounds each, of prime chestnut oak bark, peeled during the spring of 1893, and to be delivered on or before the 1st day of November, 1893, at Columbus, Indiana. Said bark to be straightly and solidly loaded in cars and consigned direct to W. W. Mooney & Sons, Columbus, Indiana. In consideration whereof, said W. W. Mooney & Sons agree to pay said J. F. Ridgley the same price as ruling in Cincinnati in the spring months of 1893, and the additional sum that it would require to deliver said bark in Columbus, Indiana, over and above what it would require to deliver same in Cincinnati, Ohio.
“It is further agreed that Mr. Ridgley can increase this contract to one thousand cords instead of five hundred, by giving the said W. W. Mooney & Sons due notice of this in writing prior to February 1, 1893.
“Signed in duplicate day and year above mentioned.
J. F. Ridgley.
W. W. Mooney & Sons.”
In Dwiggins v. Clark, 94 Ind. 49, the law governing such cases was declared as follows:
“In actions by the vendor based upon such contracts as this, the measure of damages arising out of the state of facts shown by the complaint, and, therefore, the nature of the cause of action, is controlled by the question whether upon the facts the title to the property is regarded as having passed to the buyer or as still remaining in the seller. In the former case the seller is entitled to recover the contract price; while in the latter case he may recover damages measured by the difference between the contract price and the market price at the time and place of delivery.”
The rule as above stated was applied by this court in Neal v. Shewalter, 5 Ind. App. 147, and Shipps v. Atkinson, 8 Ind. App. 505.
It is undoubtedly true that in many cases the vendor may, upon breach by the buyer, sell the property and recover the difference between the contract price and the selling price. This principle, we think, is also contingent upon the question whether the title of the property has passed to the purchaser or still remains in the seller.
The contract declared upon was an executory one. By its terms the appellant agreed to prepare for the market for appellees, 500 cords of bark of a certain quality, and deliver the same, on or before a certain date, at Columbus, Indiana, The complaint alleges that the plaintiff duly prepared the bark and notified the defendants that he was ready to ship the same, but that the defendants refused to accept or receive it,
But although the contract was executory it may have become so far executed as that the title to the property had passed to the purchaser, though possession was still retained by the seller.
In every case, whether the title to the property has passed to the purchaser or still remains in the vendor, if there has been a breach by the buyer, by refusing to accept the property and pay for it, the vendor has his remedy in an action for damages. Where the title has not passed, of course the seller still has the goods, and hence he is not damaged to the full value of the same. He can only recover, in such a case, whatever may be the loss sustained by him on account of the purchaser’s default. This loss, as the cases cited above declare, is the difference between the price fixed by the contract, and the market value of the goods at the time and place of delivery, as provided in the contract. For additional authorities on this point see McComas v. Haas, 107 Ind. 512; Pittsburgh, etc., R. W. Co. v. Heck, 50 Ind. 303, 19 Am. Rep. 713; Beard v. Sloan, 38 Ind. 128. Where, as in the present case, the seller is, by the terms of the contract, required to ship to a certain place, and to receive, in addition tb the contract price, the expense of shipment, doubtless the expense of getting the goods to the market and reselling the same should be added to the damages, for the object of the remedy given is to make the seller whole on account of the loss suffered by the default of the buyer.
In the case at bar, as we have seen, the contract price was the market value of the bark at Cincinnati, in the spring of 1893, “and the additional sum that it would require to deliver said bark in Columbus, Indiana, over and above what it would require to deliver same at Cincinnati, Ohio.” It is alleged in the com
We do not wish to be understood as holding that appellant was bound to take the bark to Columbus, if he could have found a better market elsewhere, either at home or abroad. But in the latter event he should have averred this fact in direct terms and shown by the facts set out that he obtained for it the best market price.
From what we have said follows the inevitable conclusion, we think, that, if the facts alleged malee a case in which the title to the property had not passed to the purchaser at the time of the breach, the complaint is fatally defective in failing to show the market value of the property when the default was made, and the expense of shipment and sale, as elements essential to the measurement of the damages to which the appellant would be entitled.
Appellant’s counsel concede that the title to the bark never passed to the purchaser. This concession was possibly necessitated by the fact that, under the averments, the appellant must be held to have treated the property as his own when he sold it, not as the agent of the vendee and for his account, but in the exercise of such acts of ownership over it as would conclusively indicate that he regarded himself still as the owner. The concession, whatever may have prompted or induced it, is fatal to the appellant’s right of recovery, for, as we have shown, the appellant has wholly failed to aver such facts as would enable
If, however, we should disregard the concession of the appellant that the title to the bark had not passed to the appellees when they made default, and if it could be said from the averments of the complaint that the appellant treated the property as belonging to the appellees and that he sold it as their agent and for their account, it would still remain to be determined whether the appellant has pursued a course that will entitle him to recover in the present action.
In such a case he would have the choice of one of two remedies: He could retain the property for the benefit of the appellees, and subject to their orders and sue them for the entire purchase price; or he could sell the goods as he did and recover from the appellees the difference between the contract price and the price of the sale. Pittsburg, etc., R. R. Co. v. Heck, supra; Benj. Sales (Corbin’s Am. Ed. 1889), section 1165, and authorities cited in note 3. If, however, he chooses to pursue the latter course, he must manifest his election to do so, by a preliminary notice that he intends to sell and hold the purchaser for the loss.
The case of Redmond v. Smock, 28 Ind. 365, is decisive of the point in our own State. There the plaintiff had sold to the defendants a stock of goods, together with an unexpired lease on a storeroom in which they were situated, for which payment was to be made in the future. The breach assigned was that the defendants refused to make the payments and that they had abandoned the lease, storeroom and goods, and repudiated the contract. The action was for dam-, ages for the loss of the profit of the sale of the lease, the decline in the value of the goods, and expenses incurred in making a resale, etc. The Supreme Court held that the taking possession of the goods by the
“If the plaintiffs had, upon the refusal of the defendants to receive and pay for the goods, given them notice that they, the plaintiffs, should sell the goods for the plaintiff’s account, and hold them responsible for any deficiency on the resale, and for the expenses of keeping and reselling the articles, the plaintiffs would, perhaps, have been authorized to sell the goods in the usual way of disposing of such property, but in the absence of any notice whatever of any such intention, the subsequent sale by the plaintiffs was a rescission of the contract.”
In this class of cases the seller has a lien on the goods for the purchase money which he may enforce by a resale. The object of the notice of the intention to sell seems to be to hold the purchaser for the deficiency. The notice must be a reasonable one, and what is a reasonable notice depends upon the circumstances of each particular case. See 21 Am. and Eng. Ency. of Law, 597, note 1.
In Holland v. Rea, 48 Mich. 218, 223, 12 N. W. 167, it is said that “it is now generally assumed that where the agreement is silent in regard to it and no special incidents appear to contend for it and where the extent of the vendee’s liability is not to be unalterably decided by the price obtained, no notice of the resale itself is necessary. On the other hand it is held by high authority that to entitle the vendor to proceed by resale instead of rescission or by action for the whole agreed price or actual consideration, he must manifest his election by preliminary notice that he intends to sell and hold the vendee for the loss, or notice to that effect.” Whatever relaxation of the rule may have been made by the decisions of the
In Kerr’s Benjamin on Sales the law is thus stated:
“It is the duty of the seller to give notice to the buyer of his intention to make the resale. But it is not essential that he should notify the buyer of the time and place of sale.” 2 Benj. on Sales (1888), p. 780, note to section 1077.
Chalmers on Sales, section 48, states the law as follows : “Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to resell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may resell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract.”
Whatever máy be the true theory of the complaint, therefore, in the present case, as to whether the title to the bark had passed to the appellees or was still in the appellant when the alleged breach occurred, the facts alleged do not state a valid cause of action. If the title remained in the appellant, he could have sued for and recovered the difference between the contract price and the market value of the bark, at the time and place of the sale. If he elected to treat the property as that of the appellees, he could have retained it for their use and sued for the entire purchase price, or he could have resold the property as the agent of the appellees, having first given them notice of his intention to do so. As the appellant has failed to bring himself within the lines of either of these remedies, the complaint does not state a good cause of action, and the court below did not err in sustaining the demurrer.
Judgment affirmed.