POWER V. MUNGER.
of any damages or the avoidance of the contracts on account of a failure to perform within any of t.he times stipulated in the contracts, and the parties themselves proceeded so leisurely thereunder that the first and only admitted request by the defendant for the delivery of any of the articles not delivered in August was on December 16, 1889. In Tayloe v. Sandiford, gupra, the court refused to permit the owner to retain the $1,000 which the house builder had expressly agreed to pay if he failed to complete the house within the time fixed in the contract. In the absence of any such stipulation, or any clearly-expressed intent that time should be material even, it would be clearly unjustified by the law and inequitable to hold that the plaintiff is compelled to forfeit his entire contract price on account of this trifling delay that may have been immaterial to the defendant, and, if not, may be fully compensated in damages. The result is that these contracts were not for the sale and delivery, or the manufacture and delivery, of marketable commodities. They were contracts for artistic skill and labor, and the materials on which they were to be bestowed in the manufacture of articles which were not salable to anyone but the defendant when completed. because impressed with special features useful only to it. There was nothing in the contracts or their subject-matter indicating any intention of the parties that the stipulations as to time should be deemed of their essence; and the defendant was not justified on account of the slight delay disclosed by the record in refusing to accept the goods, odn repudiating the entire con· tract. This conclusion disposes of the case, and it is unnecessary to notice other errors assigned. The judgment below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
. nl,j'cu!t Oourt o/Appeal8, Ef,ghth Oil·cUit.
LIMITATION OF ACTIONs-RUNNING OF STATUTE.
Defendants contracted to haul the steamer Butte, owned by plaintiff, out of a river, on marine ways operated by them, and made a similar contract with the owners of the steamer McLeod. By reason of defendants' negligoence in improperly blocking the ways, the Butte sUpped back into the river, and collided with the McLeod, which sank. The owners of the McLeod libeled the Butte. and recovered,damages. He!d, that the right of plaintiff to sue defendants for indemnity for the money whIch he was compelled to pay did not accrue, nor did the statute of limitations be" gin to run, until the payment was made.
In Error to. the Circuit Court of the United States for the District of Minnesota. At Law·. Action by Thomas C. Power against Roger S. Munger. Verdict and judgment for defendant. Plaintiff brings error. Reversed. Henry L. WiUia?n8, for plaintiff in error. v.52F.no.8-45
FEDEI;!.:A.L ':Q.EPORTER, ,'vol.
,,'.r;W.,:R:Warner and.,C.G.iLawrence, (Warner I Richard8011 Lawrence on the;hrief,) for defendlin'tJn elf<>r.,. ' ,Before CALDWELL and SANBO:ItN" Circuit Judges, and;SuIRAS; District Judge. "",,' ",.'
1879,Rogel' S. Munger and of C; S. Weaver & Co.,"#ere[engagedinthe bnsiiles!il6f repairing steamboats;' at Bismarck, .l7th of'Nbvernb¢r, 187'9, they entered into a written contraet, with 'the owners Butte, whereby they agreed to but ofthe:Missou'riiriverupon the marine ways oper!by'tnem, and to 'boat jn the riverih the following spring.' At the!i!lame' timetheYinll.de'an6\.-al: agreementofthe same tenor witl).' the owo,ers· 9f steamer ¥cLeod. In carrying, these contracts,' iButte was upon 'the ways by Weaver & Co., anq: at 'the fo!>tof the ways, 'preparatory to be-negligenceofD. S. Weaver & Oo."lfi ;'riotproperly- blBekingt1l'eButte upon the'ways; this steamer slid into collision with the McLeod, hljtired that vassent> sU'ch thatjt sank" and became a total 'thereupon filed ip the United States district ,cdtirt for 'a lib¢l hi admiralty! a,gaihst the owners of tlIe steamer131itte caused' them by the destruc-' don df'the tipbb'appes,u'to the United' States circuit court, on, the .1l?thJ of 'October; '18813', l(idebteeand'Judgment in favor of IibelJ arits was entere!l, awarding thm: 'one half the damages, being the sum' of $9,572;82;1" Of tbependedcy til these 'prdceedings' due notice was' given to C. S. Weaver & Co. by the owners ,of the Butte, with the request that they disprove the charge of negligence in the handling of the Butte when placed upon the ways as above stated. Upon appeal to the supreme court of decree awarding damages against the owners oftlle Batte was affirmed (127 U. S. 789)2 on the 1st day of June, 1888, apd,Qn,t4e day of that month, Thomas C. Power, one of the owners of said steamer Butte, and a respondent in the proceedings in admiralty,iWas compelled to pay, and did pay, upon said judgment therein, of $8,574;.74. On the 8th of January, he brought the action at, Ia w, in. the United States circuit 'c91irt for the district Qf.Minnesota againl!lt'Roger S. Munger and thus caused him, service of notice' 'prily. ,,' Among ,other' defenses, it was Plea,Qe9 of action did :not accrue after November 17, 1879; that more than 10 years 'bad 'elapsed, during all of which time said defendant had resided in thE! state of Minnesota, and 'was 'barred \1bder the provisions' of the statute "of the state of Minnesota. The caSe was beard before the court and jury; and after: -the. close of the te'stitll'6ny,- the court directed t4e jury to re-. .
)See 14 Fed. Rep. 483.
, 'Mem. decision. Nodpinion.'
POWER tI. -MUNGER.
turn a verdict for the tlefendant,onthe ground that the action was barred by the statute of limitations. Judgment for the defendant having been entered upon the verdict rendered in obedience to the instructions -of the court, the plaintiff, Thomas C. Power, brings the case to this court upon writ of; error, the sole question at issue being that presented by the ruling made in the court below upon the plea of the statute of limitations. This ruling of the trial court was based upon the assumption that the suit was for a breach of the written contract between C. S. Weaver & Co. and the owners of the steamer Butte; that the contract created an implied obligation on part of Weaver & Co. to properly handle the Butte; that the injury to the McLeod resulted from a breach of this implied obligation;' that a cause of action for breach of this implied obli5ation arose in favor of the owner of the Butte at the time of the injury to the McLeod, and therefore the period of limitation must be dated from that time. ' In the petition herein filed the facts already stated are set forth in their proper order, and,as we construe the petHion, it does not declare upon a breach of the contract between Weaver & Co. and the owners of the Butte, but it sets forth all the facts, and bases the right of recovery thereon. Thus it is therein stated that the plaintiff was compelled to pay a given sum of money by reason of a judgment' rendered against him and others, as the owners of the steamer Butte, as compensation for one half the damages caused to the owners of the steamer McLeod by a collision occurring between the two steamers, it being further expressl)' averred "that the collision and damage aforesaid occurred solely by reason of the carelessness, negligence, and unskillfulness of the defendants in propping up said steamboat Butte, and placing said steamboat McLeod at the foot of the said marine ways while the steamboat Butte was so improperly stayed;» thus charging negligence against Weaver & Co. in the handling of the McLeod as well as of the Butte. The fact of the execution of the written contract between C. S. Weaver &Co. and the owners of the Butte, and the general tenor of this contract, as well as of the oral contract with the owners of the McLeod, are set forth in the petition, but is not averred that by the terms thereof C. S. Weaver & Co. had bound themselves to the owners of the Butte not to cause injury to the McLeod. The contract does declare the character of the liability assumed by Weaver & Co. touching the Butte, and, if this action was to recover for damages caused to the Butte, then this contract would be the measure of the parties' rights, and would be the basis of the action. The suit, however, is not to recover for injuries caused to the property of the owners of the Butte through the failure of C. S. Weaver & Co. to properly perform their contract obligations, nor is it for the protection or maintenance of any personal or property right of the plaintiff, but, in effect, is based upon the allegations that, through the negligence of Weaver & Co. in handling the steamer Butte when intrusted to their care, injury was caused to the McLeod; that for the damages to the McLeod a judgment was obtained in the admiralty proceedings
against the plaintiff and other owners of the Butte, which the plaintiff was compelled to pay. The recital of the contracts in the declaration is in accord with the code system of pleading in force in Minnesota, under which it is the practice to set forth in some detail the facts constitutingthe history of the given case. The allegations in the declaration are entirely consistent with the view that the plaintiff bases the action on the charge of negligence. The setting forth the two contracts under which C. S. Weaver & Co. had charge of the steamers is matter of inducement, and the question at issue is not other nor different from what it would have been had it been simply stated that C. S. Weaver & Co. had possession of aud control over the steamers at the time of the accident. In other words, the question when the statute of limitations began to run is not dependent upon the mere form of the petition, but arises upon the entire facts that were presented at the close of the evidence, and at the time when the trial court ruled that the statute was a bar to the suit. If, under the facts then in evidence, it appeared that the, plaintiff could not recover except upon proof of the execution of the written contract between C. S. Weaver & Co. and the owners of the Butte, and a breach of its terms, then it might well be that the statute began to run at the date ofa breach; but, in fact, plaintiff's right of action is.not based upon a,breach of this contract. It is based upon the allegations that Weaver & Co., having in their possession and control thestea.mer Butte, so negligently handled the same as to cause injury to the steamer McLeod; aad that the plaintiff, as one of the owners of the Butte,. has. been com.pelled to pay the damages awarded to the owners of the McLeod; and the query is whether the statute began to run at the. time of the injury to.theMcLeodor at the date when plaintiff was compelled to pay the judgment in favor of the ownevs of the McLeod. His said that a rightto.i'ecover nominal damages accrued to plaintiff at the date ofthe collision I: and therefore the statute then began to run. We must be careful to.distinguishbetween a right of acLion for damages caused to the propert1'ofthe· owners' of the Butte and that caused by McLeod. In the former case, the right of action would accrue at the time of the collision, although alIthe damages resulting therefrom might not then be apparent. In all cases wherein there is an actualviolationofa legal right, or :an invasion of the right to property, the right to an action accrues, even though no substantial damage may have been caused. The violation of a legal right is a technical injury, for which nominal damages are recoverable. At the time of the collision a right of action then accrued in favor of the owners of the Butte for all damages caused, to their property through the fault of C. S. Weaver & Co., whether such fault was counted on as a breach of contract or as negligence in the nature of a tort, but for damages resulting from such fault, which are not the consequence of injury to the property of the owners. of the Butte, .but only arise because the owners of the Butte were held liable for the injury to the McLeod, then the right of action for such consequential damages did notarise until the plaintiff was compelledtopay the damages awarded the owners of .the McLeod. If the
statute began to run when the collision occurred, then the plaintiff could have maintained an action at that time against C. S. Weaver & Co. for at least nominal damages; yet it would not have been possible to frame a declaration based on the facts then existing that would have been good against a demurrer. If the plaintiff had counted on the written contract between Weaver & Co. and the owners of the Butte, it would have appeared that the contract did not deal with the question of injury to property of third parties. There is nothing in the contract which binds Weaver & Co. not to cause injury to the property of others, or by which they agree to be responsible therefor, or to repay any sums which the owners of the Butte might be compelled to pay to third parties. Any duty which Weaver & Co. owed to third parties, or to the owners of the Butte in regard to the property of such third parties, does not grow out of anything found in the written contract, but out of the fact that Weaver & Co. had the possession and control of the steamer when upon their ways, and were therefore subject to the usual obligation imposed by law, to use due care in handling property in their charge, so as not to negligently cause injury to others. The duty and obligation resting on C. S. Weaver & Co. to so handle the Butte as not to cause injury to the McLeod did not grow out of the execution of the contract with the owners of the Butte, or out of anything therein contained, but out of the fact that Weaver & Co. placed the Butte upon the ways; and the law imposed upon them, with regard to third parties, the duty of exercising due care in the performance of such . work. On the other hand, if the owners of the Butte had brought an action on the ground of negligence against C. S. Weaver& Co., the facts would not have sustained a right of recovery. Negligence alone does not create a right of action. There must be negligence and consequent damage. Railroad Co. v. Standen, 22 Neb. 343, 35 N. W. Rep. 183; Wabash Co. v. Pearson, (Ind. Sup.) 22 N. E. Rep. 134. When the Butte collidedwith the McLeod, the sinking 'of the 'latter did not cause injury to the property or property rights of the owners of the Butte. No ground then existed for awarding damages, substantial or nominal, to the owners of the Butte, as against Weaver & Co., for the sinking of the McLeod. Whether the sinking of the McLeod would ever be a cause of damage to the owners of the Butte depended upon a contingency; that is, upon another event, to wit, whether they would be called upon to make good the damages caused to the McLeod. If they were not so called upon. then the alleged negligence of Weaver & Co., which produced the collision, and destruction of the McLeod, would not cause damage to the owners of the Butte; but, if they were compelled to make good the loss caused by the sinking of the McLeod, then, and not till then, could it be said that the negligence of Weaver & Co. in causing the destruction of the McLeod had resulted in damage to the owners of the Butte. As the collision between the steamers took place on the water within the admiralty jurisdiction, it gave the right to the owners of the McLeod to look primarily to the colliding vessel, or the owners thereof, for the damages
FEDERAL RmJ,>ORTER I
caused, 'regal1l;iless of the faot thtibthEl.1atterwas urrler.tboactual con, trolof at the thneof:tbe accident. Lf"howevE'r, the ownButte, byreaeon of !their ownersflip of the bolliding vessel, were compelledbLmake!good the damages, caused toihe: Mli:Leod, and fesulting'from,thenegligenoeofC. S.Weaver & Co., then a cause of action in their' behalf against Weaver &00, arose when they were compened to make good ,the damages thus caused. The rule: applicable to such cases is stated in. Wood, Lim. Aot. § 179, as follows: ".But where apefsonor corporation is primarily liable for the negligence or mIsfeasance or of another, the statute does not begin to run upon the remEldy ofsuc,hl;lel'llOn or corporation against the person guilty of such neg-lIgence or breach of duty unti,ltl1e liability of s1.1ch person 01' corporation has been finally tIxedand ascel"tained, because, i,n the latter case, the gIst of the action is thed&mage, While in We former lit' is the negligence or breach of duty.
The distinction existin.'gbetween based upona, brell.chof contract or a violation of a legal right a.nd those for tke recovery of consequential damages resulting from negligellce is clearly pointed out in Wilcox v. Plummer, 4 Pet. 172,-a case greatly relied on to support the ruling made by the. trial court. It was an action of assumpsit to recover the loss caused by the negligence of ,an attorney in failing to sue an indorser upon a promissory note placed in. his hands for collection. The question considered by the suprell:le was as to the date when the statute of limitations began to run, it being said: "It is not a CBse of consequential da'mages, in the technical acceptation of those terms; sllch as is the Case of fJillo-n v. Boddington, 1 Car. & P. 541, in which the digghig near the foundation was the cause of the injury, for, in that instance, no' right or contract was violated. and by possibility the act might have proved harm'lees, as it would have been had the wall never fallen. Nor isitanah>gousto the case of a nuisance. ... 'Ie ... The ground of action herE! IS to act diligently and and both the contract and the brea,oh of 'it admit of a definite assignment of date. 'jnstitQted? is,the question,. for ff?m that When might lhe action have attorney was chargeable with neglitime the statute must gence or unskillfulness, his contract Was violated, and tbe action might have beeu sustained immedIately. Perhaps, in that event,nl> more tban nominal damages may be proved, and namore recovered; but, on the othel' hand, it is perItlctly clear that the. proof()f actual damage may extend to facts that occur and grow out of the injury, even IlP to the day pf the verdict. If so, it Is clear the damage.is not the cause of action." This decision gives us the test that is determinative of questions of the character of that under consideration. If the action is based upon a breach of contract, or for an invasion of some right belonging to the plaintiff, then the cause of action accrues when the act is done which constitutes the breach of contract, or·.the invasion of the legal right of the plaintiff; and, .of course, the statutory limitation begins to run at the date when the right of action .aocrues, regardless of the question of the amount of damages that may then be recoverable. If, however, the action is not based upon a breach of contract, or upon some act which, when done, is an invasion of some legal right of the plaintiff, but is for
CHICAGO, ST.P., M. &
the recovery of consequential damages, resulting from the negligence of the defendant, then the right of action does not accrue until actual damage has resulted from the negligence complained of. In th(l case at bar, the sinking and destruction of the McLeod was not an invasion of any legal right of the plaintiff. The contract between Weaver & Co. and the owners of the Bntte does not deal with the duty of Weaver & Co. towards third parties or their property. The action is not based upon the claim that, through the failure of Weaver & Co. to properly perform their contract obligations, injury was caused to the Butte or any other property or property rights of the owners thereof. Recovery is sought because, through the alleged negligence of Weaver & Co., injury was caused'to the owners of the McLeod, for which injury the plaintiff, as of the owners of the Butte, has been compelled to respond. Reiinbursement is sought, not for any injury to the property or property rights of the plaintiff, nor for the breach of any contract with him, but for, money he has been compelled to pay to the owners of the McLeod for damages resulting to them from the negligence of Weaver & Co. The right to sue for indemnity for the money which the plaintiff was compelled to pay did not accrue until payment had been made, and, necessarily, the statute of limitations did not begin to run until the right to sue therefor had accrued. It was therefore error to hold that the statute began to run at the date of the collision causing the destruction of the McLeod, and the judgment must therefore be reversed. Other questions are discussed in the briefs of counsel which we have not considered, this opinion being strictly limited to the one point of the time when the statute began to run against the right of plaintiff to sue for the money he was compelled to pay to the owners of the McLeod. The judgment below is reversed, at cost of defendant in error, and the case is remanded to the circuit court, with instructions to grant a new trial.
ST. P., M. & O. Ry. Co.
of ,AppealB, Eighth
Otrcutt. October 8, 1892.)
In an action against a railroad company for the negligent burning of buildings situated near its tracks, where the only issue was as to the origin of the fire, evidence that, on different occasions within some weeks prior to the loss, fire had escaped from engines of the company in the immediate vicinity of the property. was admissible as tending to prove the possibility, and the consequent probability, that some engine caused the fire. RaUway Co. v. Richan'd8on, 91 U. S. 454, followed. In such case it was not error for the court to charge that it is the duty of a railroad company to keep its right of way entirely free from combustible materials, where the instruction as a wholE' directed the jury to determine whether inflammable materials had been spread over the right of way by employes of the company,
SAME-INSTRUCTIONS-CHARGE TAKEN AS A WHOLE.