26 Fla. 543 | Fla. | 1890
An issue is made by the pleadings on the first breach of the contract alleged in the declaration, which breach is that the defendants refused to allow plaintiffs to proceed with the contract, and to cut and deliver any more
Referring to the correspondence, it is evident that the
It is necessary to inquire as to the effect upon the above conclusion, of two letters thus far unnoticed. These letters are that from plaintiffs dated October 28th, and Sullivan’s reply to it. The former of these letters is a reply to Sullivan’s letter of the 20th of the same month. Construing, as it does, Sullivan’s letter of the 20th, to assume that plaintiffs had “violated” the contract, and. to ask time for proving that they have done so, the plaintiffs decline to give time, and insist both that they have in all respects complied with their contract and that it is still in a large part unexecuted. It then obsei'ves that Sullivan is right to refuse to go on with the contract, if he is able to assert and prove that the contract has been executed, but, if he cannot do this, it is asking too much of them to request a suspension of their rights in order that he might satisfy himself whether they are acting honestly or not. Professing to act in accordance with the views expressed, it notifies. Sullivan that plaintiffs have some logs at the place of delivery, under the contract, and demands that they be inspected and received, stating that they have been already refused by the inspector under Sullivan’s orders. It also notifies him that if within one week from the receipt of this letter he does not announce to them his readiness to receive those logs, they will take it as a final refusal to go on with the contract. This letter elicited Sullivan’s of the 31st, in which Sullivan says in substance that his of the 28th anticipates and meets plaintiffs’ of the same date, or, in short, answers it as to everything in it except the logs referred to as being in the boom or place of delivery, and that as to these he shall confine his reply.
Counsel for appellants argues that in the former of these two letters, plaintiffs made the failure of Sullivan to receive or accept the specified logs within the time stated, the test of his refusal to go on with the contract, but that instead of refusing them, he by his last letter accepted them, and did so without an announcement that he would not receive future deliveries, and that, upon this state of affairs, plaintiffs were not justified in assuming that future deliveries would be refused.
Although the plaintiffs did in their letter make the failure of Sullivan to receive the logs within the time stated the test of their conclusion as to his unwillingness to go on with the contract, it cannot be fairly held that they meant by it than any acceptance of these logs, however inconsistent it might be with a recognition of the contract as continuing and unexecuted, which they had expressly claimed it to be in the same letter, would be regarded by them as an accession by him to their view that the contract was still unperformed and an assent by him to its being still obligatory on all parties. It is evident from this letter that the plaintiffs were not willing to even seem to assent to Sullivan’s taking such time as he might deem necessary for the investigation suggested by him in his letter, and for the purpose of bringing the matter to an issue within a definite
Appellant’s counsel also contends that this letter contains no announcement that Sullivan would not receive future deliveries. This makes it necessary to determine the meaning of Sullivan’s, as indicated by the language with which the letter closes. When he says that he does not waive the position that the contract has been fully executed by plaintiffs and by D. F. Sullivan and his representatives, assumed by him in his letter of October 28th, it is not to be understood that he meant to except from that position anything which the conclusion finally announced in that letter is shown by the entire correspondence between them to have
Viewing the letter in connection with the preceding correspondence, our conclusion is that the meaning and purpose of Sullivan in accepting the logs was that he would recede from the position he had taken, and indicated by the former letter, to the extent of receiving the particular logs, but not further or otherwise, and that he would not receive any more logs under the contract. There is no other or greater abandonment of his previous position and the clearly and only justifiable or reasonable inference to be drawn by the plaintiff was that he would receive the logs, though he claimed he was not bound to do so, but would do nothing more in recognition of the contract as continuing or unexecuted.
We shall dispose of the latter of these propositions first. Among the pleas interposed by the defendant is one to the effect, in so far as it need be given, that the contract sued on was entered into with plaintiffs by a copartnership doing business at and operating the Molino Mills, at Molino, under the name of Daniel F. Sullivan, and not otherwise, and that this partnership was composed of Matthew L. Davis and another copartnership doing business at Pensacola under the name D. F. Sullivan, and composed of said D. F. and M. H. Sullivan. To this plea there was a replication that the contract was not made with any such copartnership, and that there was no such copartnership, but that the contract was made with D. F. Sullivan as an individual; but the plea is shown, by an entry signed by the Circuit Judge, to have been withdrawn, and there being nothing in the pleadings to the contrary, the declaration stands admitted by the defendant to the extent that the contract is declared upon as the individual undertaking of the testator. The contract says nothing about any such partnership, but is
The other is, in effect, that if there has been a refusal to permit plaintiffs to carry out the contract, it was by Sullivan as surviving partner, and not by him as executor, and consequently there is no basis for an action against the defendants as executors, on account of a refusal of the kind indicated; that the correspondence furnishes no evidence that plaintiffs were prevented by any act of the executors from completing the contract.
In considering this proposition we shall not lose eight of the fact that the record fails altogether to show that their was any individual communication, either verbal or written, between the plaintiffs and Mrs. Sullivan, the executrix, upon the subject of the contract; it does not even appear that she either knew or saw any of the letters. The authorities all hold that co-executors, however numerous, are in the eyes of the law but one, or an individual person, and consequently the acts of any one of them, in respect to the administration of the effects are deemed to be the acts of all. Whatever is done by one in the scope of his duties is binding on all. Williams on Executors (6th ed.), 286, 1013-1015 and notes ; American Law of Administration, 733-4; Schouler on Executors, Sec. 400; Bacon Abr., Executors and Administrators, (D), 1. Whatever was done by Sullivan is as binding on the executrix, as such, as it ’would be on him, as executor, if he were the sole executor. As we hold the correspondence to constitute a notice to the plaintiffs that no more logs would be received, the only question is, if the action of Sullivan in giving this notice, in the
Concluding as we do that there has been an unequivocal refusal by the executors to receive any more logs under the contract, or what is termed an entire breach or renunciation of the contract, the question resulting is : the effect of such breach or renunciation as to the plaintiffs’ right to sue. It has been held both in England and our own country that where one party, even before the time for performance of the contract has arrived renounces it to the other party, the latter may act on the renunciation, treat the contract as broken, and sue before the time for performance. Thus in Hochster vs. De la Tour, 2 E. & B. (75 E. C. L.), 678; 20 Eng. Law & Eq., 157, A. D, 1853, the contract was for the services of one of the parties as a courier for the other for .a period of three months from a specified future day, June 1, 1852, at agreed monthly wages, and before the day for the commencement of the employment, the employer wrote the other party that he had changed his mind, and declined his
The case at bar does not, however, call for an expression of opinion as between the doctrine of Hochster vs. De la Tour, and that of Daniels vs. Newton. It rests upon another and unquestionable doctrine. The time for performance was on when the breach complained of was committed. The contract was entire and not severable in its character, and had been peformed in part at least, and upon a breach of the entire contract, it being committed by defendant while the plaintiff was ready and willing to perform, the latter became entitled to recover in one action the same damages as if he had fully performed his contract. R'emeleevs. Hall, 31 Vt, 582, decides that the true criterion whether one in an action on a contract can recover damages for nonperformance of the whole contract, and thus recover dam-' ages not sustained at the time the action was brought, is whether there has been such a breach of the contract as the plaintiff is authorized to consider as entirely putting an end to the contract. In Parker vs. Russell, 133 Mass., 74, q
The defendant refused to allow plaintiffs to proceed with the contract, or to cut and deliver any more logs in accordance therewith, and on account of such refusal the plaintiffs were entitled to sue as for a breach of the entire contract and to recover the same damages as if they had fully performed it.
II. The third plea to the above breach is, that the plaintiffs after cutting logs over the whole of the land mentioned in the contract, did, in order to furnish logs thereunder, proceed to cut over large areas of land outside of those mentioned in the contract to enable them to make deliveries of logs in the quantities they were bound to deliver under the contract; and that the trees cut and converted into logs by plaintiffs outside of the contract limits, when added to the number of trees cut and converted into logs by the plaintiffs within the contract limits, exceeded the number of trees which at the time of the making of the contract stood within the contract limits, and were capable of being converted into logs of the dimensions and character specified in the contract; and that all the logs procured by the plaintiffs within and without the contract limits were delivered by the plaintiffs under said contract and constituted all the logs which the said D. F. Sullivan in his lifetime, or the defendants since his death, were bound to accept from the plaintiffs under such contract. Issue was taken on this plea.
This letter was not, nor was the entire correspondence, introduced as showing admissions of defendants against their interests. In Insurance Company vs. Newton, 22 Wall., 32, cited by appellants’ counsel, a witness, who was the agent of the plaintiff, testified that he delivered the written proofs to both the agent of the company and to its officers, and that no objection was made by either to their form or fullness, the agent of the company in fact saying that they were sufficient in form, but both objected that the entire proofs disclosed, as they in fact did, a case of suicide, and on that account payment was refused. The lower court allowed the statement of the company’s officers and its
There is, however, in these letters no admissions against
It is further contended, on behalf of defendants, that an acquiescence by plaintiffs in these statements and in the conclusion that the contract had been fulfilled is shown by the testimony. This acquiescence is claimed to be manifested not only by the absence of a word of objection, oral or written, “to the facts or the conclusions drawn from them,”
The testimony shows that after plaintiffs had been notified to stop cutting logs under this contract, and had been told by Sullivan that he would take no more logs, as the mills had been burned down, they not only inquire of defendants if they could receive all logs which shall be in compliance with the contract, but plainly indicate by the expression we shall only have short logs to cut and deliver,” as well as by the general purport of the letter, a meaning and understanding that the contract was unfulfilled and that all logs deliverable under it had not been delivered. Sullivan’s reply to this letter suggests, and for the first time, the idea that the contract may have been fulfilled and the necessity for an investigation upon this point and an assurance that it will be promptly made. This suggestion is met by the plaintiffs with a prompt repudiation and a positive assertion that the contract is in a large part unexecuted, and on the same day the defendant’s letter containing the statements and conclusions claimed by them to have been acquiesced in is written. In the absence of testimony to the contrary a reasonable conclusion as to these letters of the 28th of October, is that neither is a reply to the other; an inconsistent conclusion is not reasonable. Neither one being an answer to the other, it cannot be claimed to be a tacit admission of anything said in the other and not replied to. Sullivan’s letter of October 31st, does, however, make his of the 28th, a direct answer to plaintiff's of the 28th. There is, it is true, no reply by plaintiffs to either of these letters of Sullivan, yet we do not think the jury were wrong, in so
The conclusion of the jury on this plea is claimed to be contrary, not only to the evidence, but also to the charge of the Court. In holding that the verdict is not contrary to the evidence, we mean the evidence as judged by the principles of law applicable to it, or, in other words, that the verdict is in accordance with law and the evidence. Where a charge is erroneous and the jury find contrary thereto, but in accordance with law and the evidence, and the trial judge on a motion for a new trial refuses to set the verdict aside, and enters judgment in accordance with the verdict, an appellate court should not disturb the judgment. To do so would be to perform the idle ceremony of requiring a new trial to obtain what has already been reached—a verdict and judgment according to the law and the evidence. In such a case the jury primarily and the judge ultimately, have merely disregarded an error previously committed by
There are in the charge of the Judge three paragraphs which relate to the letters. These paragraphs are as follows :
“ In reference to the letters which are in evidence, the Court charges you that their entire contents are made evidence against the plaintiffs who put them in proof, but in construing them you are to regard their contents as admissions by the parties writing them, without regard to the party offering them in evidence.
“ If there is a conflict between the contents of the letters and the parol evidence before you, the written evidence, that is the contents of the letters, are entitled to the most weight with you. But it is your province to reconcile the evidence if you can; if you are unable to do so, then you will give the most weight to the written evidence.
“ If there are any statements in the letters before you, written by defendants to plaintiffs, bearing upon the issue before you, that are against the plaintiffs’ interest, and that
Of the first paragraph it may be said that if there is anything in these letters ydiich is evidence against the plaintiffs, then of course it was to be considered as such by the jury, but the fact of the plaintiffs putting them in evidence did not make anything evidence against plaintiffs that was not of itself so. Certainly their entire contents were not made evidence against the plaintiffs, and for the reason that there, to say the least, is much in them that is evidence in favor of the plaintiffs. Again, it is clear that there is in no one of these letters, considered in connection with the plea under consideration, any admission by the party writing it.
The second paragraph need not be noticed, but of the third it may properly be said there was, in one sense at least, no reply to or denial of the specific statement of “facts” made in Sullivan’s letter of October 28th, and relied upon by defendants to sustain the plea under consideration. Though plaintiffs’ letters controvert the position that the contract had been fully performed, there is no reply to Sullivan’s letter just mentioned, and we are by no means prepared to say that the meaning of the Judge delivering the charge was not that the failure of the plaintiffs to answer or respond to the letter was an admission of the statement referred to. If such was his meaning, the verdict was contrary to the charge.
Assuming, as the defendants do and well may, that such was the Judge’s meaning, our opinion nevertheless is that the charge was erroneous.
Admissions may be implied from acquiescence, (1 Green-leaf on Evidence, Sec. 197), but the authorities all hold that the acquiescence inferable from silence when words are spoken to a person’s face, cannot be inferred from silence as
What is said in the preceding paragraph is not meant as applicable to cases in which there has been an exchange ot letters, or a correspondence, between the parties. In Fenno vs. Weston, supra, there was such a mutual correspondence,
It will be observed that the Vermont court does not hold the omission of the defendant to answer certain statements, or his failure to reply to the subsequent letters of the plaintiff to constitute in itself an admission of the unanswered statements of the first letter, or of the statements of the subsequent letters, but simply that such silence was admissible as evidence “tending” to show that the statements made were true. The facts of the case are important to a correct appreciation of the ruling. Plaintiff on September
III. One of the provisions of the contract is an agree
The assignment of error is, that the verdict of the jury was contrary to the charge of the Court, in that the jury fixed the amount of profits deducible from the conversion into logs of the remaining trees within the contract area, and the delivery of the logs under the contract without regard to the plaintiffs’ obligation to deliver one hundred logs per day if required.
The contention of the appellants is, in short, that the evidence does not show at what cost the logs remaining on the land and answering the specifications of the contract could have been delivered at the rate of one hundred logs per day.
The contract was entered into, according to the date it bears, on the 24th day of August, 1882, and by its terms was to take effect “on and after” the 22d day of the following October. Wiggins testifies that the plaintiffs entered upon the performance of it about the day of making it, by cutting and hauling logs and fixing ditch ; that they worked under contract “two years”; were idle in October and November, 1884, being first notified to stop getting logs by
In Masterton vs. The Mayor of Brooklyn, 7 Hill, 61; where the contract, one requiring several years for performance, was to furnish and deliver marble of a certain kind for the construction of a public building, and the action was brought before the time for full performance had expired, but the trial took place afterwards, it was held not only that the measure of damages as to so much of the contract as remained unperformed at the breach was the difference between what the performance would have cost and the contract price, or, as expressed in Brent Brothers vs. Parker, 23 Fla., 200, the profits which the party contracting to do the work would have made if he had completed the contract; but also that in estimating what the performance of the contract would have cost, the court and jury should be governed by the price of labor and materials at the time of the breach, paying no attention to subsequent fluctuations in the market.
It was urged in the case referred to, that inasmuch as, the furnishing the marble would have required five years, of
In Morrison et al., vs. Lovejoy, 6 Minn., 319; there was a contract for the manufacture of lumber at certain mills during a given term at a specified price per thousand feet, one party agreeing to furnish logs to the full capacity of the mills during the period covered by the contract, and the other party agreeing to employ the mills during such period exclusively for the party furnishing the logs. Before the expiration of the term of the contract, the party who was to furnish the logs refused to proceed further under the' contract, and in an action brought by the other party, .it was held that he might treat the contract as terminated, sue at once for the damage sustained by the breach, and
. The profits which may be recovered are those which are the direct and immediate fruits of the contract; and in estimating them allowance should be made for every item of cost and expense necessarily attending a full performance. 2 Sutherland on Damages, 522; 6 Minn., 354, and authorities, supra.
The testimony in behalf of plaintiffs, upon the cost of the performance of the remainder of the contract is, assuming that the amendment of the bill of exceptions after the expiration of the additional time allowed by the special order for presenting the bill, was permissible, (a point upon which we intimate no opinion), as follows : “ The logs fulfilling the contract remaining on the land could have been delivered under and in accordance with the contract for less than 2% cents per cubic foot. Thus, $1.50 daily for feeding teams, one team would haul daily eight logs, driver $1.25, sawing logs, cutting down and cutting up, 10 cents per log. Ten cents to run logs down ditch, and bring back coupling; 2^4 cents for inspection. I calculate rainy days, because in
When we consider that the subject of inquiry was the cost of delivering logs, numbering, according to the'assertions of plaintiffs’ witnesses, as high as 62,400, (for neither of them puts the quantity remaining on the land and answering the requirements of the contract, at less than four logs to the acre, and the number of acres of the land is given as 15,600), at the rate of one hundred logs per day, and that to deliver them at this rate, excluding Sundays, would have required a period of nearly two years, we cannot feel satisfied that Mr. Wiggins understood that he was speaking to the real proposition involved. The absence from his statement, of the number of “teams” it would have been necessary to keep on hand and employ to insure their
The testimony of other witnesses for plaintiffs would certainly not sustain any verdict of damages as to the unperformed part of the contract, and that for' the defendant does not. There must be a new trial.
IV. As to the alleged breach that defendant refused to appoint an inspector to inspect logs cut by plaintiffs and delivered at the place specified, it is unneccessary for us to say anything in view of our conclusion as to the breach already discussed ; and as to which is advanced by appellants in regard to the breach: “ that defendants refused to pay for certain logs cut, delivered and inspected, in accordance with the contract,” the admission shown by the bill of exceptions and the charge of the Judge to have been made that the amount claimed for logs actually delivered was actually due, is good ground for silence on our part.
This disposes off all the points raised.
The judgment will be reversed and the cause remanded for a new trial.