146 P. 147 | Or. | 1915
Lead Opinion
Opinion
The respondent’s counsel move to dismiss this appeal on the ground that the abstract does not contain so much of the record of the trial of the cause as is necessary intelligently to present the questions to be decided. Within proper time a transcript on appeal and an abstract were filed with the clerk of this court. The transcript contains certified copies of the verdict, judgment, notice of appeal, undertaking therefor, and the service of the two latter as evidenced by indorsement noted thereon. The abstract sets forth what appear to be copies of the pleadings, verdict, judgment, motion for a new trial, order denying the same, and assignment of alleged errors. The specifications of error consist in admitting, over objection and exception, testimony, giving the questions and answers in most instances, and in others the substance of the evidence received, instructing the jury as complained of, setting out parts of the charge, refusing to instruct as requested, quoting the language desired
The motion to dismiss the appeal is denied.
Motion Denied.
Opinion on the Merits
Modified June 15, rehearing denied September 7, 1915.
On the Merits.
(149 Pac. 524.)
In Banc. Statement by Mr. Justice Benson.
This action was commenced in January, 1911, and by it plaintiff seeks to recover damages for breach of a contract to furnish logs to the sawmill located at Glendale, Oregon, then owned by plaintiff and defendant Ford. This is the third appeal. The issues, so far as they are of interest in this discussion, are briefly as follows: On August 17, 1910, plaintiff and defendant Ford purchased a sawmill, certain personal property and a small tract of land to be used in con
“It is further understood and agreed that both parties to this contract shall procure and deliver to the other party, as security for the faithful performance of the respective covenants of this agreement, bonds in the sum of twenty-five thousand dollars ($25,000) conditioned upon the faithful performance of such covenants and agreements and with good and sufficient sureties, or, in lieu thereof, other security satisfactory to the parties who are to receive the same.”
Pursuant to this provision, the defendant Oregon-Idaho Company gave to plaintiff and defendant Ford a bond in the following form:
“Home Office, San Francisco, California.
“Know all men by these presents: That the Oregon-Idaho Company, a corporation, organized' and existing under and by virtue of the laws of the State of Oregon (hereinafter called the ‘principal’) and the Pacific Surety Company, a corporation, organized and existing under the laws of the State of California, and whose principal office is located in San Francisco, California (hereinafter called the ‘surety’), are held and firmly bound unto A. H. Ford and F. F. Williams (hereinafter called the ‘owner’) in the full and just sum of twenty-five thousand and 00/100 ($25,000.00) dollars, lawful money of the United States of America, to the payment of which sum of money, well and truly to be made, the said ‘principal’ binds himself, his heirs, executors and administrators, and the said ‘surety’ binds itself, its successors and assigns, jointly and severally, firmly by these presents.
“Dated this 1st day of August, A. D. 1910.”
Modified. Behearing Denied.
For appellant there was a brief over the names of Mr. Thomas E. Crawford and Messrs. Wilbur, Spencer & Beckett, with oral arguments by Mr. Crawford and Mr. Schuyler C. Spencer.
For respondent there was a brief over the names of Mr. J. O. Bailey and Messrs. Platt & Platt, with oral arguments by Mr. Bailey and Mr. Robert Treat Platt.
delivered the opinion of the court.
“There is no more certain way of finding out what the contracting parties meant than to ascertain what they have actually done in carrying out the contract. By so doing we learn what construction the parties themselves have placed upon the terms of their stipulation”: City Messenger & Delivery Co. v. Postal Telegraph Co., 74 Or. 433 (145 Pac. 657, at page 660), and cases there cited.
The parol testimony of plaintiff in relation to the acceptance of the cash payment and the note secured by mortgage, being specifically accepted as satisfactory security in lieu of a bond, was properly admitted upon the same theory.
"However, be the interim eight days or one day, all the plaintiff was required to do was to notify the surety company of the breach of the contract by the principal with due diligence and within a reasonable time after being apprised thereof. Whether that was done was a question solely for the jury to determine.”
“But, in this day and age of corporate sureties, when the burden is lightened by the payment of adequate premiums, and their final liabilities ofttimes secured by counter indemnity, the strictness of the old rule is relaxed, and the modern day surety company must show some injury done before they can be absolved from the contracts which they clamor to execute”: Baglin v. Title Guaranty Co. (C. C.), 166 Fed. 356; Leiter v. Dwyer Plumbing Co., 66 Or. 474, at page 482 (133 Pac. 1180).
In the latter this court, speaking by Mr. Justice Bean, says:
“In order for the surety company to escape responsibility, it should appear that such company has been prejudiced by a breach of the contract. The breach must not have been merely technical, but a substantial one, working a pecuniary disadvantage to the surety company, or depriving it of some protection or privilege reserved in the bond. ’ ’
It is needless to multiply citations. The instructions complained of are a correct exposition of the law.
‘ ‘ So then you come to the question of damages. Has there been in this case a breach of the contract on the part of the Oregon-Idaho Company, and, if you determine there has been, then what is the damage which Mr. Williams is entitled to recover in this case ¶ He is entitled to recover the difference between what these logs would cost him, if the Oreg’on-Idaho Company had carried out their contract, delivered in the pond at the mill at Glendale, and what he would have had to pay for logs at the time he wanted them during the continuance of this contract,, at Glendale — the reasonable price at Glendale. And, if these logs could not be obtained at Glendale, then at the nearest available point, added to that, transportation to Glendale. That is the measure of damages in the ease — the difference between what he would have gotten them for, during the life of this contract, and^what he would have had to pay for them, if he had gone out into the market and purchased them at Glendale. ’ ’
Defendant contends that neither Cottage Grove nor Leona was an “available” market under the evidence, for the reason that the cost of transportation from any of these points was prohibitive, and that logs so purchased could not have been manufactured at a profit. In answer to the suggestion, we need only to say that several witnesses testified that these were available markets, and we think the court’s instruction was correct.
“We, the jury duly impaneled to try the above-entitled cause, find in favor of plaintiff and A. II. Ford, and against the defendant Pacific Surety Company, and assess their damages in the sum of $25,000*221 and interest from October 1, 1910, at 6 per cent per annum.”
And on tbe same day the court entered judgment thereon for the sum of $31,202.17, being the amount of said $25,000, with interest to that date, November 19,1914, computed at 6 per cent. There is no controversy about the. nature of this action. It is for unliquidated damages, and the rule is well settled in this state that interest cannot be recovered thereon: Hawley v. Dawson, 16 Or. 348 (18 Pac. 592); Pengra v. Wheeler, 24 Or. 532 (34 Pac. 354, 21 L. R. A. 726); Smith v. Turner, 33 Or. 381 (54 Pac. 166). The court erred in giving judgment for interest.
The judgment of the lower court must therefore be modified to the extent of eliminating the amount of interest computed prior to the date thereof. In all things else it is affirmed.
Modified. Rehearing Denied.