Canavan v. Neeld

Opinion bv Me. Justice Dean, The defendants in July, 1896, entered into a contract with the city of Pittsburg to build and complete within ten months what is known as the Schenley Park bridge. Preliminary to commencing the work, they contracted with plaintiffs to furnish all the stone necessary for it, of certain dimensions and quality, in accordance with the plans and specifications of the director of public works of the city, and subject to his inspection and approval; the delivery to commence July 25, 1896, and continue at a weekly average of quantity, the whole to be on the ground by September 15,1896. This contract although drawn as stated, was not actually signed by the parties; the plaintiffs rather feebly denied it to be the contract, and although they admit that a copy was delivered to them, and they followed its specifications, yet they alleged instead of all the stone for the bridge, they were only to deliver such quantity as could reasonably be taken out at their quarry; but the weight of the evidence was clearly against them on this point, and it having been submitted to the jury, they have found the unsigned instrument embodied the contract. We therefore assume it to have been the contract. It contains this stipulation: “ In case the said first party (Canavan) fails to furnish suitable stone as fast as mentioned above, the said second party (Neeld & Foley) may purchase the deficiency, paying therefor open market rates, and charging said first party with any additional cost there may be.” [212] It was averred by defendants and not denied, that plaintiffs had failed to perform their contract as to delivery of the quantities within the time named. Defendants protested against this violation of the contract, and notified plaintiffs to deliver, even after the expiration of the time, but they closed their quarry and made no further deliveries. Defendants then leased, opened and operated a quarry of their own, from which they obtained a considerable quantity of stone, and besides, purchased largely from other parties to complete their contract with the city. They averred, the stone quarried by themselves, as well as a large part of that purchased, exceeded in cost the price to be paid plaintiffs; besides they averred plaintiffs’ default had imposed upon them greatly increased expense, because of the delay in completing their work. Plaintiffs sued for the contract price of the stone delivered about #2,000; defendants claimed to offset the damages occasioned directly by the breach of contract. On the issue thus framed, the case was tried. The court instructed the jury that on plaintiff’s default, defendants had the right to go into the market and purchase stone at the market price, and hold defendants answerable for the difference between that and the contract price. And further, if the market could not supply them with sufficient stone they had the right to open and work their own quarry to make up any deficiency, and if the cost of quarrying exceeded the contract price, plaintiffs were answerable for the difference up to a cost not greater than the market price. •Under the instructions the jury certified a balance in favor of defendants, and plaintiff appeals assigning nine errors. The burden of appellants’ complaint is set out in the fourth to ninth, inclusive, assignments of error; these all allege, that assuming the unsigned writing to be the contract, the court adopted a construction of it not warranted by its terms, and not in accord with the intention of the parties. It is, in substance, argued that but one particular default was contemplated, the failure to furnish all the stone, and that for this but one measure of damage was expressly provided, and that was the difference between the contract price of delivery and the open market price. In interpreting this clause of the contract, we seek the intention, not alone from the exact words, but from what should be [213] reasonably implied from the undisputed circumstances existing at the time, and which necessarily must have operated on the minds of the parties. It was well known to both, that the stone must be of uniform color, otherwise the city inspector might reject it, hence the desirability of obtaining the entire supply from one particular quarry; for whatever sameness might exist as to quality of the stone, in the same region, there might be quite a difference in color. And while the law would, without the insertion of this clause in the contract, have implied it, yet as if to add to the obligation of the plaintiffs, defendants exacted an express stipulation in the nature of a penalty which they thought would guard against default; they wanted the particular product of this one quarry delivered weekly. They proceeded with the work on the bridge, and built into about three hundred cubic yards of stone furnished by plaintiffs, when in face of the penalty, plaintiffs ceased deliveries. Defendants then as provided in the contract go into the open market to purchase building stone; not any kind or color, but such as would harmonize with that already in the walls, for none other would pass inspection. Necessarily, the market was somewhat limited. In attempting to purchase suitable stone, defendants found, either from quarrymen’s knowledge of their necessities, or a combination to uphold prices, that they could not purchase, except at a price largely in excess of the contract price with plaintiffs. Instead of purchasing at what they deemed an excessive figure, in which they would have been justified by the literal words of the contract, they opened their own quarry and procured a considerable quantity of stone; then, other quarrymen who had demanded a large price, offered to furnish the stone at a much less one, and defendants accepted their offer. As there was now no necessity for continuing the operations at their own quarry, they closed it, and supplied themselves by purchase. There is no evidence that defendants did not act with good faith; their conduct under the circumstances was clearly to the advantage of plaintiffs. The stone, both that quarried and the greater part of that purchased, cost more than the contract price; but on the evidence submitted the jury has found that defendants procured it at as low a price as they could. Plaintiffs argue, that under the contract defendants had but [214] one course open to them, to go into the market and purchase the stone; that by opening their own quarry, they adopted a method unknown to the contract, and it must be assumed there is no warrant for charging them for these stone other than the contract price. We think such a construction altogether unreasonable. The open market price for suitable stone when plaintiffs made default was for one specification, $2.00 per yard more than the contract price, and seventy-five cents per yard more for another; defendants considered this extortion, and would not buy; but they must have stone, so they leased and operated their own quarry for about six months, then the dealers came down in price, and they actually bought considerable quantity at less than the contract price. Defendants admitted that the comparatively small quantity obtained from their own quarry cost a little more than the price asked by dealers when they opened the quarry; while they expected when they began work it would cost less. But the court plainly instructed the jury, that the plaintiffs were not chargeable with a higher price than the stone could be purchased for in the open market. The reasonable construction of this clause, is that put upon it by the court below; that is, it measures the damages for plaintiffs’ default in this particular at a sum not exceeding the difference between the open market price and that specified in the contract; it might be less than this, but not more. ■ The words “ fail to furnish suitable stone as fastas” required by the agreement, meant that in no event was the partial or total failure of plaintiffs to work an interruption to defendants in completing their contract, but that they should have the right to at once go into the market and purchase. It did not restrict defendants to this single item of damages, but left open to them the right to claim other damages, which were the direct consequences of plaintiffs’ broken contract in this particular. From the evidence in their whole conduct, it is highly probable defendants’ business methods saved to plaintiffs more money than they saved for themselves. Appellants certainly have no grounds for complaint. There is nothing of merit in the other assignment of error. The judgment is affirmed.