152 P. 171 | Utah | 1915
Lead Opinion
The plaintiff sued the defendant to recover an alleged balance due “for goods, wares and merchandise sold and delivered” to him. The case was here before on the defendant’s appeal. The dismissal of his counterclaim was held erroneous, and the case was remanded for a new trial. Schwab Safe & Loch Co. v. Snow, 44 Utah 341, 140 Pac. 761. A new . trial was accordingly had to the court without a jury, and the court entered judgment for the plaintiff on the balance agreed to be due it, and also made findings of fact and conclusions of law in favor of the defendant on his several counterclaims and entered judgment in his favor for the difference between the amount allowed plaintiff on its claim
The case was practically tried and submitted on the evidence introduced on the first trial, nearly all of, which is in the form of letters passing between the parties. The printed abstract used on the former appeal is filed as the abstract on this one, with a few material yet what may be called merely formal, additions. The facts are sufficiently set forth in the opinion on the former appeal, and we shall not pause to repeat them here.
After carefully considering the relationship of the parties and the correspondence passing between them, it ivas on the former appeal held that the evidence was sufficient to authorize a finding in favor of the defendant on his counterclaims. Mr. Justice Straup, after considering the evidence, in speaking for the court, said:
“Under the circumstances disclosed and the shown relation between the parties, the defendant’s sending in the orders and the plaintiff’s acknowledging receipt of them, stating they had been entered, would receive prompt attention, and that shipments would be made as soon as possible, sufficiently shows an acceptance.”
What was there said by Mr. Justice Straup was, however, intended as applying to the counterclaims as a whole, and not to any particular one. Nor was it intended to foreclose the plaintiff from interposing any defense, in part or in whole, that it might have. All that was intended is clearly expressed in the quotation, namely, that the orders and acceptances prima facie were sufficient to constitute contracts of purchases and sales. Upon that particular subject there is practically nothing new; in the evidence, with possibly one or two exceptions, to which we shall specifically refer hereafter. The court made separate-and specific findings upon all the defendant’s counterclaims, eight in number, and plaintiff’s counsel assails those findings as not supported by the evidence.
“We feel very much grieved in having to request you to cancel the order of W. H. Bishop for a No. 160 which you have had since November, 1906. ’ ’
In response to that request the plaintiff replied:
“We are also» grieved that it is necessary to cancel the Bishop No. 160 safe, but it was impossible for fis to fill the order any sooner. ’ ’
Defendant’s counsel, however, calls attention to some letters that passed between the plaintiff and the defendant concerning the Bishop sale. These letters, however, all antedate the cancellation and acceptance of the Bishop order, and therefore can be given no effect in so far as the cancellation of that order is concerned. The defendant, no doubt, had a right to propose the cancellation of any order that had been accepted by the plaintiff, and the plaintiff had a clear legal right to accept his proposal. After the proposal to cancel any standing order was accepted, that terminated the contract respecting the order thus canceled, and we cannot see how the same could be reinstated, except by a new agreement between the parties. To be more specific: The order by the defendant and the acceptance thereof by the plaintiff, as a matter of course, constituted a contract binding upon both parties. The defendant, however, proposed an unconditional cancellation of the order, and the plaintiff accepted the proposition. This, in law, constituted a rescission or cancellation, whatever it may be called, of an executory contract by mutual consent, and in view that thé contract was executory the acceptance by plaintiff of defendant’s proposal to can-’ cel or rescind the order was a sufficient consideration to support such rescission or cancellation. 1 Page on Contracts, Section 317. In view, therefore, that the defendant uneon-
By what we have said we do not wish to be understood as
‘‘1 In regard to the 80 safe for W. H. Davis, Mina, Nevada, which takes a special cabinet, desire to say that we cannot furnish you this safe with the special cabinet. We are herewith returning you diagram of the special cabinet. * * * We can fill an order for our regular safe within a week, and if this safe is satisfactory to Mr. Davis please let us know by return mail and we will make prompt shipment.”
It appears that Mr. Davis did not want the “regular safe,” and hence the order never was filled. As near as we can make out, the court found against the plaintiff upon this counterclaim for the sole reason that there were two other safes included with the Davis order, and the order was by the plaintiff accepted in general terms. When plaintiff was advised, however, that the Davis safe was to be provided with a “special cabinet,” it at once informed the defendant that “we cannot furnish you this safe. ’ ’ The truth of the matter there
The evidence upon the remaining five counterclaims is ample to sustain the findings in favor of those counterclaims.
Plaintiff’s counsel next assails the amount of damages allowed by the court. The court entered judgment for the defendant for the full amount for which he had sold the safes, less the cost price and freight. Thus the court treated the transactions as though all of the safes ordered by the' defendant, which orders were accepted by the plaintiff, had been promptly shipped by it to the persons to whom the defendant had sold them, and as though those persons had paid the defendant the selling price, deducting only therefrom the cost price and the freight from the place of shipment to the place of delivery; in other words, the court allowed the defendant all the profits he would have made upon his contracts of sales. Plaintiff’s counsel contends that this is hot the usual or ordinary measure of damages for a breach of a contract for failure to deliver articles of merchandise which have been sold. In ordinary cases such is not the measure of damages. The usual rule is that in such cases the injured party must obtain the article in the market if he can do so, and Ms meas
“Wien tie vendor is informed tiat tie purchase is made to enable tie vendee to fulfill a contract which he has theretofore made with a third person, and such vendor furnishes the goods, but not according to contract, and there is no market price for such goods, and the purchaser furnishes such goods to such third person, but is not able to recover of him the price stipulated in the contract with such third person, by reason of the breach of the contract committed by such vendor, in determining the damages for such breach such vendor is bound by the price his vendee was to receive from such third person, whether such price was communicated to him at the time of the making of the contract with his vendee or not, unless the price was such as to yield an extraordinary and unusual profit, which could not reasonably have been presumed to have been in contemplation by him at the time he made his contract. In such a case he would not be bound beyond such sum as would yield a reasonable and fair profit to his vendee. Ordinarily, the price to the first vendee would, presumptively, be held to be a reasonable price; but if the facts in any given case are such as to show such price to yield an extravagant or extraordinary profit, the second vendor will not be bound by such price, in the absence of evidence of previous knowledge, as before stated;*207 and, in order to assess the damages, the court must he put in possession of sufficient evidence to enable it to arrive at a conclusion in respect to what would amount to a reasonable profit on the transaction.”
The rule is not so guardedly stated by all the courts. In McKay v. Riley, 65 Cal. '623, 4 Pac. 667, the rule is stated thus:
“Ordinarily, the rule of damages in actions like the present is the difference between the price1 agreed to be paid and the market value, because the vendee can obtain the article contracted for at the market price. When, however, the circumstances are such that the ven-dee cannot thus supply himself, the rule does not apply, for the reason of it ceases. Bank v. Reese, 2 Casey (26 Pa.) 143. In such case the true measure of damages is the actual loss sustained by the vendee by reason of his not receiving an advance of profit through agreements which he himself has made in reliance upon the fulfillment of his vendor’s contract.”
- To the same effect are Rose v. Foord, 96 Cal. 154, 30 Pac. 1114; McHose v. Fulmer, 73 Pac. 365. The rule is also discussed by the author in 3 Sutherland on Damages (3d Ed.), Sections 652, 653.
In the case at bar the defendant alleged in his counterclaims that he had informed the plaintiff in each case of the price for which he had sold the particular safe and to whom sold and the place of delivery, and that the plaintiff had accepted the defendant’s orders in the light of that information. The court also found these allegations to be true, and further found that the defendant could not obtain other-safes in the market, and there is evidence in support of the findings. We are of the opinion, therefore, that the case falls squarely within the rule laid down by the Supreme Court of Wisconsin, which, in our judgment, is sufficiently guarded to prevent injustice in particular eases. We can see no escape from the conclusion that, under the evidence and findings when applied to the law, the defendant is entitled to recover the profits allowed by the trial court, except on the Bishop and Davis orders. On the Bishop order there must be a conditional deduction of $294.68, and on the Davis order one for $279.95, or a total deduction of $574.63.
In view that this is a law case, we cannot dispose of it, ex
Rehearing
ON APPLICATION FOR REHEARING.
Counsel for appellant has filed a petition for rehearing in which he assails practically every proposition decided against his contentions. He somewhat severely criticises us for not stating our reasons more at large upon some of the propositions where the ruling is against him. As a sample of his criticism we refer to the following: Counsel, in his original brief, urged that the defendant had waived his right to recover damages for the reason, as counsel contends, that defendant had continued to recognize the contracts of sale as being in force after the alleged breaches had occurred. To sustain that contention, counsel, among other cases, cited Phillips, etc., Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341; Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984; Hubbardston Lumber Co. v. Bates, 31 Mich. 158; Krause v. Board of Trustees (Ind. App.), 66 N. E. 1010, and Claudius v. West, etc., Co., 109 Mo. App. 346, 84 S. W. 354. Counsel says we cited no cases to the contrary, and that we, in four lines, dismissed his contention, etc. So we did, and the rea-
“Where the time oí payment undei- a contract is extended after date for pajunent, the right of enforcing a forfeiture for default in payment is waived.”
The decisions in the other cases cited rest upon practically the same principle.
The substance of the correspondence between the parties to this action is set forth in the former opinion, to which reference is made in the opinion on this appeal. The peculiar relationship of the parties is there fully referred to. It was not deemed necessary to enlarge upon or even to specifically refer again to that relationship in the last opinion.
“voluntary and intentional relinquishment of a known legal right and implies an election to dispense with something of value or fore-go some advantage which the party waiving it might, at his option, have demanded or insisted upon.” 4 Words and Phrases (2d Ser.) 1226, 1227.
A waiver may or may not rest in contract. If it does, it, like all other contracts, requires some consideration. It may, however, also partake of the nature of an estoppel in pais. 4 Words and Phrases, supra. A mere cursory reading of the correspondence between the parties to this action which passed between them, in connection with other evidence in the case, leaves no room for doubt that the defendant did not intend to, nor did he, waive any legal rights which had accrued to him by reason of the breaches of the contracts set forth in his counterclaims. The cases cited by counsel, therefore, have no influence upon the questions involved here. Ordinarily, Avhere the right to insist upon a forfeiture exists, and the party who has the right to declare a forfeiture perr mits the other party to continue to act or to do something after the time to declare the forfeiture has elapsed, and the other party continues to act in the honest belief that the forfeiture will not be insisted upon, then a waiver of such forfeiture may be implied, and the law looks upon such waivers with favor. Where, however, a legal right or cause of action has accrued for a breach of contract or for some other reason, the law' requires that the waiver be established in accordance with the doctrine we have just quoted from Words and Phrases.
Counsel also insists that we erred in not reversing the judgment on the counterclaim relating to what, in the opinion, is called the J. C. Fuller safe. He still contends that there is no evidence justifying the court’s finding as to that counterclaim, and further insists that the Fuller safe was delivered. There is evidence on'the part of the plaintiff that
“Why, it was shipped to Ely, but it was about eight months after the order was sent,to the company [the plaintiff] , and in the meantime Fuller had left that country and I could never deliver the safe.”
This is a law case, and we cannot pass upon the weight or effect of the evidence. While the writer, upon the whole evidence, would be inclined to find the ultimate fact respecting that safe in favor of plaintiff’s claim, yet there is some substantial evidence in support of the court’s findings, and hence we cannot interfere with the judgment upon that counterclaim. The other question of whether the plaintiff had accepted the order for the J. C. Fuller safe we need not discuss further. We passed upon that in the original opinion, and adhere to what is there said in that respect.
It is next insisted that we erred in not reversing the judgment upon the measure of damages. It is urged that inasmuch as it is made to appear that the defendant sold the safes in question at an advance of more than 100 per cent., that, therefore, we have not followed the rule laid down in the Wisconsin ease from which we quoted in the opinion. Here again counsel entirely overlooks the evidence. While it is true that the defendant sold the safes at the price stated in the former opinion, yet the evidence conclusively shows that his expenses of keeping men in the field taking orders for safes were very great, and that he frequently impressed that fact upon the plaintiff in the correspondence that passed between them. What his net profits were is not shown, and hence the doctrine laid down by the Wisconsin court could be given no application. We did not deem it necessary to set forth the evidence upon that subject or refer to it, since counsel was thoroughly familiar with it. In view that we are satisfied with the rule laid down in the opinion upon the question of the measure of damages we shall not further discuss that subject here.
Counsel for plaintiff, however, further contends that we erred in not reversing the findings and judgment of the lower ■court respecting defendant’s third counterclaim, in which