123 Minn. 122 | Minn. | 1913
Appeal by defendants from an order denying their alternative motion for judgment or a new trial after verdict for plaintiff.
Two causes of action are declared, predicated respectively upon failure to deliver lumber under two separate written contracts of •sale, copies of which were incorporated in the complaint, and a re•covery was had on each.
The contract involved in the first cause of action bears date November 29, 1909, was executed by both parties, and provides that the purchaser agrees to buy all pine and spruce lumber “now in the .yards at Eriesburg, Minnesota, delivered on the cars at the last mentioned place, at the price of twenty ($20) dollars per one thousand feet, in rough, and graded as follows, to-wit: No. 2 and better * * The party of the first part agrees to resaw all the two-inch lumber as ordered, and to plane all the lumber as directed by the second party. It is further mutually agreed that the price for resawing and planing the lumber shall be in accordance with the current price at Minneapolis. The party of the first part also has the privilege to take out the order for the school Ihouse .to be built at Eriesburg this winter.”
“Whenever the accepted proposition or contract is for the sale or delivery of a specific article or number of articles, or a specific amount of service or materials, or where, by the terms of the contract, the number of such articles, or the amount of such service or materials, is ascertainable, a promise of the other party may he implied, though not expressed in the contract, and hence the engagements are mutual.”
The contract under consideration obviously comes within this rule, and Minneapolis Mill Co. v. Goodnow, supra, controls.
At the commencement of the trial, defendants, in addition to the claim of lack of mutuality already disposed of, objected to the introduction of any evidence under the first cause of action, because it contained no allegation of demand and none of breach. The same objection was made to the second cause of action, and also that there was- no allegation concerning any cutting of timber by defendants, or that plaintiff scaled or graded the lumber specified. These objections were overruled, and error is assigned thereon.
The question presented is not whether the complaint is technically well framed, but whether it is sufficient as against the objections interposed at the trial. The right thus to question the pleading un
The complaint was sufficient to warrant a recovery as for money had and received. Proctor v. C. E. Stevens Land Co. 94 Minn. 181, 102 N. W. 395; Todd v. Bettingen, 109 Minn. 493, 124 N. W. 443; 2 Dunnell, Minn. Dig. § 6129. The serious question on this branch of the case is as to the sufficiency of the evidence to establish a breach. The broad fact stands out, however, that defendants received the advance payment and have never delivered lumber therefor. Taking the record as a whole it sufficiently appears that it was understood between the parties that defendants would be unable to fulfil the contract, and that at best plaintiff would receive only a part of the lumber paid for by the advance payment. Furthermore, it appears that defendants unreasonably delayed performance and induced the belief on plaintiff’s part that they would be unable to go on with their obligation. No ground exists for permitting defendants to retain plaintiff’s money, in the absence of bona fide effort on their part to perform, and the settled principles underlying the doctrine of recovery for money had and received apply. The failure of the record to disclose the details of the transactions between the parties with greater certainty, is largely attributable to defendants’ failure to produce their books for use on the trial.
We find no prejudice to defendants in the court’s action in permitting the jury to allow defendants a credit for the lumber actually delivered under the first contract.
As to other assignments of error presented, it is sufficient to say that they have been considered and that we find no reversible error.
Order affirmed.