169 P. 1174 | Or. | 1917
delivered the opinion of the court.
Section 449 of 15 E. C. L. (p. 972) reads thus in part:
“While a judgment is decisive of the points raised by the pleadings, or which might properly be predicated upon them, it does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiffs might have joined, but which in fact are not joined or embraced in the pleadings. ’ ’
“No suit can be maintained except upon a legal ground of action. Now, as one cause of action cannot in itself alone, when merged in judgment, carry another independent cause of action with it, it is difficult to understand how a judgment for the plaintiff without plea can extinguish a counter right of action by the defendant, however closely connected the two claims may be. Everyone has the right to try his own case, and in his own way. ’ ’ .
Mr. Bigelow says in his work on Estoppel (6 ed.), p. 206:
* ‘A judgment is conclusive only in respect of matters necessarily inconsistent with it. Now, the fact of the ill performance of a contract is not inconsistent with a judgment upon the contract by the other party”: See also Id., p. 203, note 4.
“But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to_ the point or question actually litigated and determined in the original action, not. what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.”
Counsel for defendants contend that plaintiffs waived and set at large the estoppel by the former judgment. There was no waiver by bringing the present action. Any such waiver must of necessity relate to a question determined in the former action, as in Cooley v. Snake River Dist. Imp. Co., 78 Or. 384 (152 Pac. 1190).
At the proper time defendants’ counsel asked for appropriate instructions to the jury as to the delivery of the hay, based upon their contention as to the former judgment. This part of the charge to the jury need not be further considered. There was no error in sustaining the demurrer to defendants’ separate defenses.
The merits of this case depend upon the damages for the breach of the contract for the sale and delivery of the hay. As to this part the plaintiffs allege that in the early fall of 1915 the plaintiffs had and owned a large band of stock cattle, to wit, between 350 and
“Well, when I saw we wasn’t going to have hay to run the cattle through I started to rustle around to get some more hay. ’ ’
He said that he presumed it was in January when he discovered that fact; that the first hay which he purchased for $12.50 a ton to replace that burned was measured January 19, 1916, and arranged for a day or two before that; that about the first of October he knew the hay was burned; that he went to Kansas City to market some cattle and returned in about two weeks; that he may have said in effect that he would not buy any more hay; that if the winter was as mild as the preceding one the 263 tons would be sufficient to carry them through; that about February 6th follow
“that if the winter of 1915-1916 had been a winter of the same character (as the preceding one) the 263 tons of hay actually delivered, would have been sufficient to have carried his cattle during that time.”
It is shown on the part of the defendants that the market price of hay, similar to that contracted to be delivered, the last part of September and during October of that year was from $5.50 to $6.
The measure of damages for the breach of an executory contract for the sale and delivery of personal property is the difference between the contract price and the market value at the time and place of delivery or within a reasonable length of time thereafter: 8 R. C. L., p. 487, §48; Hookersmith v. Hanley, 29 Or. 27, 36 (44 Pac. 497); Krebs Hop Co. v. Livesley, 59
“It is a plain question of a breach of an executory contract for the sale of personal property at a price specified. The measure of damages for a breach of such a contract by the purchaser is the difference between the contract price and the lesser market value of the goods at the time of the breach of the contract. ’ ’
The law imposes upon a party injured by another’s breach of contract the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damage to be unnecessarily enhanced, the increased loss when it was avoidable by the performance of his duty falls upon him: Sherman Center Town Co. v. Leonard, 46 Kan. 354 (26 Pac. 717, 26 Am. St. Rep. 101, 104); 8 R. C. L., §.14, p. 442.
“We submit that it is immaterial when respondents purchased hay to replace the hay burned, if they paid no more than the market price or what it could have been purchased for with suitable feeding grounds, within a reasonable time after they learned appellants would not replace it.”
Where the value of personal property is in issue, if the same has a market value at the time and place in question, then the evidence is usually confined to its value at such time and place, or at a reasonable time before and after that particular time: Comer v. Way, 107 Ala. 300 (19 South. 966, 54 Am. St. Rep. 93); Jones v. Morgan, 90 N. Y. 4 (43 Am. Rep. 131). If
The evidence of plaintiffs as to the price paid for the hay in January, February, and March, 1916, was incompetent for the purpose of showing the market value of the hay at the time the same was to have been delivered under the terms of the contract. On October 1, 1915, the plaintiffs had knowledge that the hay was burned and that they could not rely upon the same for the purpose of wintering their cattle. They state in their complaint that early in the fall of 1915 they had between 350 and 400 head of cattle which
‘ ‘ several hundred acres of pasture, suitable for feeding grounds during the winter season of said years, and from 400 to 600 tons of hay.”
Knowing this, it was not in compliance with their duty or the exercise of ordinary care for them to speculate upon the mildness or rigor of the coming season, and wait until the latter part of January, 1916, before purchasing a portion of the hay and until February and March before obtaining the remainder to be substituted for that destroyed. If Stillwell & Profit desired to take chances upon the 263 tons of hay delivered being sufficient for the sustenance of their cattle during the following winter they could do so at their peril.
The judgment of the lower court is reversed and the cause will be remanded with directions to enter judgment in favor of the plaintiffs in the sum of $107.50.
Reversed and Remanded With Directions.
Rehearing Denied.
In Banc.
delivered the opinion of the court.
In our former memorandum of opinion we indicated that the judgment of the lower court should be set aside on account of prejudicial error and judgment was directed entered under Article VII, Section 3, of the Constitution, which provides that either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury and any other matters material to the decision of the appeal; and
“if the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any ¿rror committed*128 during the trial; or if, in any respect, the judgment appealed from should be changed, and the Supreme Court shall be of opinion that it can determine what judgment should have been entered in the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal to the Supreme Court.”
Counsel for defendants petitioned for a rehearing and called attention to that part of the former opinion wherein it was stated that the $1,602.50 recovered for the difference in the price paid by plaintiffs for the 253 tons of hay purchased and the contract price should be eliminated from the judgment for want of any competent evidence to support the same; that the balance of $107.50, special damages, should be allowed plaintiffs as compensation for moving their cattle and loss occasioned thereby. This balance should be $102.50. In making the memorandum the sum of $1,710.00, which appeared in the record, was evidently remembered as the amount of the judgment instead of $1,705.00, the correct amount. This correction can be made by the clerk. We are impelled to do this upon the retrial of the issue in order that our findings upon this important question of damages for moving a band of about 400 head of cattle three different times during the inclement winter season shall coincide with the findings of the jury in that respect. It is strenuously urged by counsel for defendants that the evidence shows that the expense of moving the cattle the first time is not “greater than three or four dollars, the cost of the two thirty-dollar per month men for one day.” We are unable to accede to this contentious argument. It is doubtful if the amount named by defendants’ counsel would pay the expenses of one while superintending such removal. It appears from the evidence that the cattle were not all moved at one time,
“Well, there was extra men and when I got over on the Dobbin place, I had to put on an extra man and team there. I could not tell you just off-hand in dollars and cents how much the extra expense was. It was quite a considerable sum.”
That the expense and injury occasioned by moving - the cattle amounts to less than $105.50 cannot be believed by anyone familiar with such matters as the jury probably was. It is asserted that this sum is not within the issues raised by the complaint; that part of the complaint reads as follows:
“That by reason of defendants failing, neglecting and refusing to furnish plaintiffs’ said hay at the time and place and as they contracted and agreed to do, plaintiffs were compelled to and did, at great cost and expense move said cattle from the feed grounds and pasture lands purchased from defendants as aforesaid, and in the sum of not less than $100; and that by reason of said failure, neglect and refusal of defendants, and the said removal of said cattle from said pasture and feeding grounds, plaintiffs lost in injury to, death and shrinkage that was and could never be returned, in the sum of not less than fifteen hundred dollars. ’ ’
It is obvious that a much larger amount than that allowed by the jury and by this court was alleged in the complaint. It is evident that the jury allowed a small sum for injury to the cattle other than the one dollar shrinkage, as shown by the special verdict. All the evidence on this phase of the ease was carefully weighed by this court and no doubt was so considered
Plaintiffs filed a petition for rehearing and while no real complaint is made to the re-examination of the facts under the Constitution it is earnestly argued that the evidence in the case showed the market value of the hay which was not delivered to be, at or about the time of the failure to deliver the same, the amount paid by the plaintiffs in January, February and March; and that the court erred in holding that there was failure to prove what the market value of the hay was on or about October 22, 1915, when the remainder was measured, and was not shown to be more than six dollars per ton; but that, on the other hand, it was shown to be no more than that sum. In its entirety Mr. Stilwell’s evidence indicates that there was no effort made to purchase hay until long after the date mentioned when the winter season proved to be more severe than he had expected. While he testified that he commenced to look around for hay with suitable feeding grounds he practically admitted that he said in effect that if the winter was not more severe than the prior one the hay which was not burned would be sufficient for wintering his cattle. His statement quoted in our opinion as follows: “Well, when I saw we wasn’t going to have hay to run the cattle through I started to rustle around to get some more”; and that about January 12, 1916, he purchased the first lot for $12.50, stating in this connection “no, I found no cheaper hay than twelve dollars and a half,” evidently meant that he could not obtain the hay at that time at any less piice, and clearly indicates that no effort was made before that time actually to obtain the hay even though he might have inquired in regard thereto. All the evidence indicates that the plaintiffs failed to exercise due diligence to
Counsel for plaintiffs inquire if the court overlooked the fact testified to by Stilwell that the defendants refused to permit plaintiffs to use the feeding grounds named in the agreement for feeding the unburned hay, and contend that this was sufficient excuse for plaintiffs not purchasing the hay or moving the same to the grounds leased from the defendants. This necessitates a reference to the written contract between the parties from which it appears that the plaintiffs obtained from the defendants
“the privilege of using for the purpose of pasturing their livestock that portion of the lands controlled by party of the first part, H. M. C. Company, located on the west side of Catherine Creek adjoining the H. M. C. Company ranch proper, for the sum of $350.”
In our judgment this part of the contract is separate from the agreement as to the sale of the hay. As to the privilege of pasturage or lease, it is neces