No. 8,900 | Cal. | Oct 28, 1884
Appeal from a judgment, and order denying a motion for a new trial.
On the 15th of March, 1881, the Sierra Lumber Company, beino- the owner of some tracts of timber lands, two sawmills, known as the Champion and Yellow Jacket mills, situate in Tehama County, together with a lumber yard and planing mill, a
The company furnished the two mills with their equipments, the flume, the outfit for logging, and the iron for the tramway to be constructed by the plaintiff; and the plaintiff entered into possession under the contract, constructed a tramway, and operated the mills through the lumbering season of 1881, during which he manufactured five and one-half millions feet of lumber, all of which the company received from him, and settled for at the contract price.
But the plaintiff charges that while he fully performed the contract on his part, the defendant on its part failed to fully perform it, in this: that it neglected and refused to furnish a suitable engine for the tramway which he constructed. In fact, the company did furnish an engine; but the plaintiff alleges that it was wholly unsuitable for the tramway, “ by reason of the peculiar make of its wheels,” and would not work properly on the tramway; and although repeatedly notified and informed of the fact, defendant refused to furnish a suitable engine, in consequence of which plaintiff was able to manufacture only five and a half millions feet of lumber; when, if he had been furnished with a suitable engine for the tramway, according to the contract, “ he would have cut nine millions feet at no greater cost or expense than he was put to in the manufacture of said five and a half millions feet.”
The questions at issue as raised by the pleadings, therefore, involved inquiries as to the contract under which the parties had acted—the plaintiff in constructing the tramway, and the company in furnishing the engine; and as to the character and sufficiency of the tramway, and the suitability and sufficiency of the engine. It was conceded that the engine and tramway did not work well together; but the great question was, whether the faults which caused that result, and occasioned the loss of which the plaintiff complained, were in the engine or in the construction of the tramway.
As to the contract, there was given evidence tending to prove that it had been made by the plaintiff and the general superintendent of the company. It was admitted that both parties acted under the contract which was made, and each claimed to have fully performed it. The company gave evidence tending to show that the contract was for the manufacture of 7,000,000 feet of lumber ; the plaintiff, that the contract was “ to manufacture all the lumber he could.” Much evidence was also given in relation to the construction of the tramway, and the suitability and sufficiency of the engine which the company furnished, and which the plaintiff used and operated in the performance of the contract. There was also evidence given tending to prove that the plaintiff had men, machinery and force sufficient to operate the mills at their full capacity for the lumbering season of his contract, and that he could have manufactured during the season a greater quantity of lumber than he
The first relates to instructions given to the jury upon the question of the authority of an agent of a corporation to make a contract for the corporation. At the defendant’s request, the court had given the jury some instructions upon the subject of the ostensible authority of such an agent, and then quoted to them the language of sections 2315-16-17 of the Civil Code; and, in connection therewith, substantially told them that the-plaintiff would not be entitled to recover, unless they found as a fact that the superintendent of the company had been authorized to contract for the company. The defendant excepted to the instructions; but the (instructions as given were favorable and not prejudicial to the defendant.
As to the performance of the contract by the parties, the following was given: “ One of the parties to a contract cannot complain of a failure on the part of the other to perform, if his own laches or refusal to perform has contributed to defeat the object of the contract.
“ Proof of perfection, however, in tramway, cars or engine, is not required: only such as from the evidence you find that the parties contemplated such a tramway, such cars, and such an engine, and only such, to fulfill the contract, as a prudent man, owning the timber and mills, would have made or furnished for himself, having in view present and future pecuniary profit.” Defendant excepted to the latter portion of the instruction. We think it was not objectionable. In substance it told the jury, that to entitle either of the parties to their verdict it was not necessary for the plaintiff to prove that he had constructed a perfect tramway; nor for the defendant to prove that he had furnished a perfect engine. The contract only required such a tramway or engine as, in the situation of the parties, and in the light of surrounding circumstances, would be sufficient and suitable for the business in which they were about to engage. To the first part of the instruction the defendant did not object. In fact, it was given at the request of the defendant; and in
The elaborate instructions which were given placed the right of the plaintiff to recover upon the ground that he himself must have been wholly free from fault, not only in performing his part of the contract, but in operating the engine which was furnished to him. And there is no doubt that a person who sues to recover damages for injuries in an action arising out of contract or tort, cannot recover if the injuries were consequent upon his own negligence, which directly contributed to them. The law imposes upon every one engaged in the performance of a contract the duty of doing everything in his power to prevent loss to himself from a breach of the contract by the other party. If he cannot prevent it altogether, he must make reasonable exertions to render it as light as possible; and if, by his own negligence or wilfulness he allows the damages to be unnecessarily enhanced, the increased loss must fall upon him. (Hamilton v. McPherson, 28£T. Y.72.) The question, whether the loss of which the plaintiff complained was due to the laches of the plaintiff, or to the non-performance of the contract by the defendant, was, therefore, properly put to the jury; and if the evidence satisfied the jury that the engine furnished by the defendant was so defective that the plaintiff was prevented from manufacturing the quantity of lumber which he could have manufactured with a suitable engine, and thereby sustained a loss, he was entitled to recover, unless he had by his conduct estopped himself from maintaining the action.
There was evidence given of a settlement between the parties, after the close of the lumbering season of the year 1881, of the affairs and business of the parties in connection with the
If there was such a breach, resulting in loss to the plaintiff, the question then remained, What was the measure of damages ? Upon that question, the following instructions were given:
“ For the breach of an obligation arising from contract, the measure of damage is the amount which will compensate the party aggrieved for all detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.”
“ Where an action is brought to recover general damages for a breach of contract, the jury may take into their consideration any consequential damages which the plaintiff has sustained by reason of such breach, provided that such damages may fair*67 ly and reasonably be considered either as arising naturally— that is, according to the usual course of things—from the breach of the contract itself, or may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.”
“ If the jury believe from the evidence that the engine furnished by defendant to plaintiff was not of the make and description it had contracted to furnish him; and that the plaintiff duly notified the defendant of the defects in said engine, and of its unfitness for the purposes of said contract, and afterwards, without any default on his part, made every reasonable effort, in good faith, to accomplish the purposes of said contract, and to prevent loss or injury; but ultimately, by reason of the defendant’s failure to furnish an engine of the kind and make agreed to be furnished, suffered damage, and was prevented from manufacturing lumber which he otherwise would have manufactured, then the plaintiff is entitled to recover, as damages, the contract price for the lumber which he was so prevented from manufacturing, less the expense he would have incurred in manufacturing said lumber, over and above the amount necessarily expended, under the circumstances, in manufacturing the amount actually manufactured by him.”
We think these instructions were right.
The contract being one susceptible of more or less performance, the damages sustained by an incomplete performance or partial breach were apportionable according to the extent of failure. That would cover the actual loss sustained, and the actual loss would be the profits which the plaintiff could have made upon a complete performance of the contract (Ulter v. Chapman, 43 Cal. 283; Upstone v. Weir, 54 Cal. 124" court="Cal." date_filed="1880-07-01" href="https://app.midpage.ai/document/upstone-v-weir-5439536?utm_source=webapp" opinion_id="5439536">54 Cal. 124; Hale v. Trout, 35 Cal. 229" court="Cal." date_filed="1868-07-01" href="https://app.midpage.ai/document/hale-v-trout-5436647?utm_source=webapp" opinion_id="5436647">35 Cal. 229.) And these profits would be the product of the lumber which he was prevented from manufacturing by the partial breach of the contract, and the contract price, less the expenses which would have been incurred in its manufacture.
There was evidence tending to prove that the plaintiff had made preparation by men and means to manufacture lumber to the extent of the capacity of the mills; and that with this force he could have manufactured with a suitable engine more lumber than he did manufacture. But defendant denied “that
It was also contended that the value of the use of the tramway and engine by the plaintiff for his individual benefit, at times which did not interfere with the performance of the contract, should be deducted from any damages sustained by the plaintiff. But that matter entered into the settlement between the parties as tó the lumber actually manufactured; and the defendant admitted that the plaintiff had paid for the same.
Taken in connection with the evidence and pleadings in the case, we think the'instructions, as a whole, correctly stated the law of the case, and presented the case fairly to the jury ; and as we find no prejudicial error in the numerous assignments of errors, the judgment and order are affirmed.
Myrick, J., Sharpstein, J., and Thornton, J., concurred.
Rehearing denied.