MISSOURI tURNACE CO.
sUf'Viving partners refused to sue when they ought to sue. I 'There 'is nO such allegation in this bill. The only allegation istha.-t the pla.intiff requested them to "join. him as complainants lierein." 'Atldthat they refused to do so. It was proper for them to reruse;tb jpin witH the plaintiff, as he is not a proper party plaintiff, and bis: suit is only to collect his own share. The defendants, against whom a recovery is sought, have a right to demand that the whole:cl!liim, being a. part. nership claim, shall be sued for in one suit· by the proper plaintiffs. To allow this suit would be to sanction as many separate suits in respect to portions of the claim as there were partners. The demurrers mUBtbe allowed, with costs, with liberty to the plaintiff, under rule 35 inequity, to move for leave"to:aniEmd his bilL
(Oirtmit OJurt, W. D. Pl11Iilta'yZtJania.Auguilt '26; '188l.J
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TO FURNISH COKE TO PROPRIETOR OF Br,AsT FURNACES -BREACH BY VENDOR, AND NOTIctl: THAT WII,x; NOTDELIVimLNltw FORWARD CONTRACT BYYENDEE-"-MBASURE OFDAMAGltk :"
Defendant's intestate sold and dlllivel' to plainti:Q:" blast furnaces fol' iron, ConnelIsyilleqoke, ton, deliverable, in eq'ual daily on each working' day durlng' the year--1880. After delivering 3,76/),tOIlll, the venUo!', withQut' valid, excuse,. , tied plaintiff, on Jrebruary 13, 1880, thilthe r,escip.ded, the 1,l0Iltract,IlJ1& tlJ-ere, after delivered no coke. The vendor persisting in his to plaintiff, OIJ. 27, 18£0, made a SUbstantially siinilar, forward 66n,traet with H. for tl1edelivery, during the balance of the year, tOnS ()f!such coke at four dollars per. ton', which ·was the 'then market rate for 8Uchpl Wrr ward contract" and rather the market .prke, for pre\leqt market price of coke dechned In May, 1880, to$l..30 per ton. "'rhe plambfl' brought suit on February 26, 1880. Held, (1) that tl1eplll'intrfl 'Wits licit etititled t.o recover the difference between the price,stipulated in tlie'contniCtl'sueii 011 and the price which the plaintiffQ.greed to pay H. the ruary 27, '1880; (2) that the of damages was the sum of the ,q.ifferel\ces between the price stipulated hi the contract sued on and the' fuarket prIce of Connellsville coke, at: the place of delivery, on the several 'days'whenthe sav' eral deliveries shou'd have been mlld6 under tl\e contract.
Sur motion ex pm·te plaintiff fora new triat Ilem'Y IIitc!Ux)cft; IOeorge Shims, and'S. Sciwyer,Jt., 'for plaiBWf. o. E. 'Bo.lJle and D./1'1 iWatson, for defendant. ACHESON,D. J'. .' This suit,brought February to tecoV'er damages fot' the breach by John M.. Cochrarrt of 's·contl1 fot a.ct the sale and, deliveTy by hlm1tothe plaintiff of 36;'021: tons 'Of'; sta,tid.. ard Connellsvilunmkej' at 'the Price ()f' $IL20 par tOOll; tt>t.all
advance in case of a rise in wages,) deliverable on cars at his works, at the rate of nine cars of 13 tons eachper day on each working day during the year 1880. After 3,765 tons ware delivered, Cochran, on February 13, 1880, notified the plaintiff that l;le had rescinded the contract, and thereafter delivered no coke. After Cochran's refusal further to deliver coke, the plaintiff made a sub!lti:tntially similar tract with one Hutchinson for the delivery during the balanceofthEi year of 29,587 tons of Connellsville coke at· fall! dollars per ton, which was the market rate for such a forwardaontract, and rather below the market price for present deliveries on February 27, 1880, the date of Jhe Hutchinson contract. The plaintiff claimed to .recovedhe difference between the price stipulated in, the contract &ued on, and the price which the plaintiff agreed to pay Hutchinson under the contract of February 27, 1880. But the court refused to adopt this standard of damages, and instructed the jury that the plaintiff was "entitled to reoover, upon the ooke which JolinM; Cochran contracted to deliver and refused to deliver to the plaintiff, the sum of the difference between the contract price-that is, the price Cochran was to the market price of standard Connellsville coke, at the place of delivery, at the s.everal dates when the several deliveries should have been madeund'e'rthe contract." Undetthis instru6tion there was a verdict for ,the plaintiff, for $22, f71.49. As the plaintiff had in its hands $1,521.10 coming to the defendant for coke delivered, the damages as found by the jury amounted to the sum, of $23,692.50. The plaintiff moved the court for a new trial; and, in suppot:t of the motion, an earnest and certainly very able argument has been made byplaintiff'a counsel;; But we are not convinced that the instruction complained of was erroneous. Undoubtedly it is well settled, as a general rule, that when contracts for the sale of chattels are broken by the vendor failing to deliver, the measure of damages is the difference between the contract price and the market value of the artiele at the time it should be delivered. Sedgwick on the Measure of Damages, (7th Ed.) 552. In Shepherd v. Hampton,3 Wheat. 200, this rule was distinctly sanetiOI;J.ed. Chief J ustic,e Ma,rshall thel'e says: "'.The unanimous opinion of the court is that the prioe of the article at the time it was to be delivered is the measure 'Of damages," Id:'204. Nor doesihe case of Hopkins v. Lee, 6 Wheat. 118, promulgate a different doc. trine; for, clearly, "the time of the breach" there spoken of is the time when delivery should have been made under the contract.
MlSSOURI FURNACE CO. V. COCHRAH.
It is said in Sedgwick on the Measure of Damages, (7th Ed.) 558, note b: "Where deliyery is required to be made by instalments, the measure of damages will be estimated by the value at the time eaoh delivery should have been made." In accordance with this prin.ciple the damages were assessed in Brouon v. Muller, Law Rep. 7 Ex. 819, and Roper v. Johnson, Law Rep. 8 C. P. 167, which were suits by vendee against vendor for damages for failure to deliver iron, in the one case, and coal, in the other, deliverable in monthly instalments. In one of these cases suit was brought after the contractperiod'had expired; in the other case before its expiration; but in both cases the vendor had given· notice to the plaintiff that he did not inteudto fulfil his contract. To the argument, there urged on behalf of the vendor, that upon receiving 'such notice it is the duty of the vendee to go into the market and provide himself with a new forward contraot,Kelly, C. B., in Brown· v.Muller, said:
"He is not bound to enter into such a contract, which might be toMs advantage or detriment; according as the market might fall or rise. If it feU; the defendant might fairly say that the plaintiff had. no right to enter into a speculative contract, and insist that he was not called upon to pay a greater difference than would have existed had the plaintiff held his hand."
Where the breach is on the part of the vendee, it seems to be settled law that he cannot have the damages assessed as of the date of his notice that he will not accept the goodlil. Sedgwick on Measure of Damages,601. 'fhe date at which the contract is considered to ,have been broken by the buyer is that at which the goods were to have been delivered, not that at which he may give notice that he intends to break the contract., Benjamin on Bales, § 759. And, indeed, it is a most rational doctrine that a party, whether vendor or vendee, may stand upon his contract and disregard a notice from the other party of any intended repudiation of it. If this were not so, the party desiring to be off from a contract might choose his own time to discharge himself from further liability. The law as to the effect 'ofsuch notice is clearly and most satisfac: torily stated by Cockburn, C. J., in Prost v. Knight, Law Rep. 7 Ex. 112.
" The promisee, if he pleases, may treat the notice of intention as inoperative, and wait the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; lJut in that he keeps the contract alive for the benefit of the other party as well as his own; he remains snbject to all his own obligations and liabilities it, and enables the other party not only to 'complete the contract, if so
;1d'Vtsed;notwithstalldingbisprevious Tepudiationof it, but ,alsc to take ad;Vilntage of any supervening circumstances which would justify bim to declin.. to c()mplete it. On the other hand, the promisee may, if he ,thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract,and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the nonperformallce of thecontract'at the appointed time, subject,'however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss."
We do not think the force of the English eases referred to has. been at all weakened by that of the Dunkirk CoUiery v. Lever, 41 La,w Times Rep. (U. S.) 632, so much relied on by the plaiJ;l.tiff's counsel. Nor are the facts of that case similar to those of the case in There the controlling fact was .that at the time the vendee defini. tively refused to accept, there was no 1'egularmarket for cannel coal, and the vendors resold as soon as they found a purchfl,ser accordiIlg to the ordinary course of their business, alld withQu.,t uprllasonable delay. Therefore, it was held that the plaintiffli wele elltitled.to.t,he .full amount of the difference between' the contract price and .that whioh " they obtained. Our attention has been called to MastM'ton v. Brooklyn, 7 Hill, 61; Undoubtedly this is a leading case in this bianchof the law"and especially upon the subject of the profits allowable as damages, and the prinoiples upon which they are to be ascertained. The suit, hoWever, was upon a contract to procure, manufacture, and 'deliver llla,rble for a building, and involved aniIivestigation into the constituent elements of the cost to which the contractor might ,have been sub. jected had the contract been carried out, suo}Fas . the price of ropgh material in the quarry, expe1l36s,of dressing, etc. Upon the question as to the time at which the cost of labor and ma,teriillswas to be estimated the court was divided, and I do not, find that the views of the majority upon this precisE! point have been followed. The' case, however, lacked the element of market value, (Id. 70;) and as Judge Nelson cited with approbn.tion BOOf'man v. Nash; 9 Barn. & C. Leigh v. Paterson, 8 Taunt. 540, it cannot be snpposed that the court intended, in a case of a marketable article having a market value,to sanction the principle contended for here. I see nothing in the present case to distinguish· it from the ordinary case. of a breach by the vendor ,of a forward contract 'to Bupplya with. a,rticle ,n,ecessary' 'to his business. For BUell breach what is qfd'apiag13B? Says K,elly, C. B., In Brown v. Mulle1': "The proper mefisure ofdamagos is that sum which
IIIBBOUIU FURNACE CO. V. COCHRAN.
the purchaser requires to put himself in the same condition as if the contract had been performed." That result-which is compensation -is secured, it seems to me, by the rule given to thE\ jury here, unless the case is exceptional. The vendee's real loss, whether delivery is, to be made at one time or in instalments, ordinarily is the differ'; encebetween the contract price and the market valne at the times the goods should be delivered. If, however, the article is of'limited production, and cannot, for that or other reason, be obtained in the market, and the vendee suffers damage beyond that difference, the measure of damages may be the actual loss he sustains. McHose v. Fulmer, 73 Pa. St. 367; Richardson v. Chynoweth, 26 Wis. 656; Sedg,on Dam. 554. With this qualification to meet exceptional cases, the rule that the damages are to be assessed with reference to the times the contract should be performed, furnishes, I think, a safe and just standard from which it 'would be hazardous depart. In this case:.! fail to perceive anything to call for a departure from that staw:Iard. There no evidence of any' special damage to the plaintiff by the stoppage of its furnaces or otherwise. Furthermore, the contract with Hudson, February 27, 1880, was made ata time when the coke market was excited and in anextrao'rdinarycondition. Unexpectedly and suddenly coke had risen to the unprecedented price of four dollars per ton; but this rate was of btiefduration. The market declined about May 1,1880, and by the middle of that month the price had fallen to one dollar and thirty cents per ton. The good faith of the plaintiff in entering into the new contract cannot be questioned, but it proved a most unfortunate venture. By the last of :May the plaintiff had in its hands m'orecoke than was required in its business, and it procured-at what precise lOBS does not clearly appear-the cancellation of contracts with t.o the extent of new 20,000 tons. As the plaintiff was not bound to enter into forward contract,,it seems to me it did so at its own risk, and cannot fairly claim that the damages chargeable against the defendant shall be assessed on the basis of that contract. The motion for a new trial is denied.
FEDERAL REPORTER. DETRICK and others v. BALFOUR and others.
(Circuit Court, D. California. August 22,1881.,
CONTRACT-CONSTRUCTION-" CHANGE IN DUTIES "-REV. ST.
§ 2838. A written contract entered into at San Francisco, in the state of California, for the sale of goods to arrive from Calcutta, contained this clause: "Any change in duties to be for or against purchasers." The rate of duty on the bags constituting the sUbject-matter of the contract has not been changed since the contract was made. The amount of duty actually paid was, however, considerably less than the amount whieh it would have been necessary to pay on the same goods if they had been entered at the time when the contract was made, owing to a change, meanwhile, in the estimated value of the rupee, in which currency, under section 2838 of the Revised Statutes, the invoice of such merchandise was required to be made out. In an action by the purchaser of the goods to recover the amount of this difference, held. the parties, by the words "change of duties," Intended a change in the rate of duty by authority of congress, not a difference in the amount of duty merely.
Held, further, that the court would put that construction upon these words whether it viewed them in the light of the general and legislative history of the country, or in the light of the common understanding as to the meaning of these words, when used in this connection, among the merchants of the mercantile community where the contract was made; i. e., those San Francisco.
SAWYER, C. J. On the fourteenth of November, 1879, the plamtiffs and the defendants, interchangeably, entered into the following 'Contract:
" No. 172 p. SAN FRANCISCO, 204 California street, Nov. 14, 1879. "I have this day sold to Messrs. E. Detrick & Co., on account of Messrs. Balfour, Guthrie & Co., five hundred thousand (500,000) standard 22 by 36 grain sacks, ex Evelyn, from Calcutta, at the duty paid price of nine and fiveights cents (9j cents) each, U. S. gold coin, on delivery in good order and condition on the fifteenth day of May next. Marks and numbers to be declared on receipt of invoice, and allowance on damaged bales, (if any,) failing a satisfactory adjustment, to be submitted to arbitration. Contract void, should vessel not arrive by or on the fifteenth of May, 1880. It is at sellers' option, ·on or before first prox., to change the character of this contract to positive delivery, at nine and three-quarters cents (9£ eta.) each, for the first day of .June. "Approved: Balfour, Guthrie & Co. "WILSON WHITE, Broker. "Any change in duties to be for or against purchasers. B., G. & Co., by R.B."
All the material facts of the case, except the testimony as to the meaning attributed by the merchants of San Francisco to the memorandum at the foot of the contract, "any change in duties to be fOl