Champion Fiber Co. v. Hardin

AuleN, J. We concur with his Honor in holding that the supplemental contract of June,' 1908, is not an accord and satisfaction. It is not pleaded as such, the terms used do not reasonably lead to that conclusion, and instead of being performed, it has been breached by the plaintiff. The question is considered and the authorities collected in King v. R. R., 157 N. C., 54, and it is there held that an accord and satisfaction to be effectual “must be performed in its entirety. If performed in part only, the original right of action remains, and the party to be charged is allowed what he has paid in diminution of the amount claimed.” We are further of opinion there is no evidence to support the finding that the defendant could have delivered 336 cords of wood per month during the three periods when his operations were suspended by reason of the wrongful conduct of the plaintiff, and also that the rule adopted' for the admeasurement of damages in this particular is erroneous, if, as the plaintiff contends, there is no wood uncut except that on the 763-acre tract which will belong to the defendant. The defendant alleges in his counterclaim he could have delivered 300 cords per month while his operations were suspended, and he testified that he would have been able to deliver 300 cords per month. Ho further testified that, “Eliminating the months during which his operations were suspended, he did not average 100 cords per month,” and “that during the nine months in which he claimed wood shipments were suspended he could have gotten out and shipped 2,700 cords at a *773 cost of $2 per cord, and tbat be would, bave bad a profit of $2 per cord, and tbe profit during tbe entire period would bave been $5,400,” and for tbis, if tbe defendant was referring to tbe whole period, be is allowed in tbe account stated by bis Honor tbe four items of $5,376, $672, $684, $3,696, aggregating $10,428, and if only tbe first period is considered be is credited with 336 cords per month instead of 300 cords, to which he testifies, which would make a difference against the plaintiff in the first item of credit of $576 and in the second of $72. The rule adopted for ascertaining the damage is not the correct one unless there is other wood in the contract which tbe defendant was prevented from cutting, for tbe reason he is awarded damages for wood he would bave delivered during the suspension periods, when be after-wards delivered tbis same wood to the plaintiff and was paid this profit. In other words, if, as tbe plaintiff contends, there is no other wood, and we eliminate the wood left on tbe 763-acre tract of land and uncut, which is not in controversy, tbe defendant cut 5,806 cords, 1,200 cords, and 196 cords, making a total of 9,202 cords, which would be all the wood on the land, except that not in controversy, and he is allowed a profit on 6,202 cords, 2,688 cords, 403 cords, and 1,848 cords, or 4,939 cords in excess of the wood on the land. Profits may be recovered under certain conditions, as' pointed out in Wilkinson v. Dunbar, 149 N. C., 20, and are allowable in this action under the rule followed by the Court if there is other wood uncut, except that on the 763-acre tract, which tbe defendant has been prevented from cutting; but under the facts as the plaintiff contends they appear in this record, the true rule is interest on the capital invested during the suspension periods, expense of employees and teams, deterioration in value of property, if any, by reason of the suspension, and any other damages the direct and necessary result of the wrongful act of tbe plaintiff. Ford v. R. R., 53 N. C., 235; Rocky Mount Mills v. R. R., 119 N. C., 709. The evidence of the defendant as to the profit from the 1,200 cords of wood cut and not hauled is, in one place, tbat bis profit would bave been $1 per cord, in another $1.50, in another, $1.75, and finally that “his profit in the wood cut and left on the ground when the plaintiff took charge of the operation was $1.50 per cord,” and there was therefore no evidence that the profit was $2 per cord, which was allowed him. The reason for tbe difference in tbe profit on this and tbe other wood is tbat tbe defendant did not haul tbis wood, and escaped tbis expense. The only evidence as to tbe value of tbe flume is tbat of tbe defendant, who testified that it cost him $1,500 to build it, presumably in 1907, when he began operations, and that the plaintiff took possession of it in 1912. *774 There is no evidence as to the material used, as to the life of the flume, or the extent of the 'deterioration, and while there may be some evidence of value, it is too vague and unsatisfactory to justify a finding that it was worth $750 in 1912. We find no error in the other assignments. The judgment of the Superior Court is reversed, and the cause is remanded, with directions to strike from the account the items: 8 months breach of contract.$ 5,376.00 Bonus on 2,698 cords of wood. 672.00 Damages for 1% months supension, less $100.... 684.00 Damages for third suspension and breach of contract, 5Yz months. 3,696.00 1,200 cords of wood cut, not hauled. 2,400.00 Flume . 750.00 and to assess the damages as to these items in accordance with this opinion. Reversed and remanded.