Roswell Nursery Co. v. Mielenz

OPINION OP THE COURT. HANNA, J. — The first question presented for our consideration is that the judgment is contrary to the findings of fact. In this connection appellee urges that the so-called findings of fact are not the findings of fact contemplated by sec. 2999 of the Compiled Laws of 1897, because not in writing, or requested in writing, or signed by the judge and filed with the clerk. In view of our conclusion, in this case that the findings of fact are not contrary to the judgment rendered for reasons that will appear in this opinion, the' contention of appellee becomes an abstract question, disconnected with the granting of relief in this case, and the determination of which would not affect the result arrived at. 2 Cyc. 533. • The appellant asserts that the judgment is contrary to the findings. A careful examination of the record discloses that the trial court proceeded upon the theory that the order, upon which the contract involved in this case was based, could not be countermanded under the circumstances of the case. Such properly considered to be contrary to the judgment rendered in the case. The correctness of the view of the trial court will be considered under the next proposition for consideration, viz: that the judgment is contrary to law, because the order sued on had been countermanded before plaintiff had done everything required by the contract. We cannot see that there had been a revoking of the order previously given, though there was an expressed desire to avoid responsibility for half the order. It, also, appears that before defendant attempted a partial countermand of his order, he had been advised by plaintiff in a letter, dated March 13, 1912, that the trees were ready for shipment, having been placed in the healing ground. 2 The appellant contends that in the case of a breach of an executory contract for the sale of goods, before delivery, the seller cannot recover on the contract price, but his right is limited to an action for damages. 3 We do not disagree with appellant’s contention in this respect and that the principle is supported by the great weight of authority is clear, (see authorities collected in case note to Acme Food Co. v. Older, 17 L. R. A., N. S. 808), but the principle, like so many others, is not without exception. We find that the principle in question has no application to a case where one has contracted to manufacture articles upon order according to specifications to be designated, and had purchased all the necessary material and. parts, but had not assembled the same. Gardner v. Deeds & Hirsigg, 4 L. R. A. (N. S.) 740. The necessity and reason for the exception to the principle, admitted to be controlling in the case of executory contracts generally, is well stated in an editorial note to the case last cited, in the following language: “And the general rule can have no application, unless it appears that, upon breach by the vendee, the vendor could have placed the commodity on the market, and, by thus disposing of it, have relieved himself from the consequences of the’vendee’s default. If the article manufactured is made after a particular pattern or style, so that it 'would be useless, or practically useless, to anyone except the person for whom made, it would seem as if the vendor should be entitled to recover the whole contract price.” ' The reasoning of this editorial note is peculiarly applicable to the present case. The defendant had received an order for certain fruit trees one and two' years old, and before the desire of plaintiff to change or modify his order was received, had ordered a part of the trees from another nurseryman, and had dug up other trees from his own nursery, cutting the same back and putting them in the healing ground ready for shipment. It also appears that undisputed testimony, to the effect that inability to deliver the trees would result "in their total loss, was introduced. Under such circumstances, we do not think the general principle should apply, but on the other hand, that the case falls more fairly within the exception generally invoked in the case of manufactured .articles. Finding no error in the record, the judgment of the District Court is affirmed.