Eddy & Davis v. Clement

The opinion of the court was delivered by Steele, J. The auditor finds that, at the contract price, there is a balance of $115. and interest due the plaintiffs on account of the lumber they have delivered the defendant. He also finds that the plaintiffs’ agreement was to furnish and deliver the lumber at the place where the defendant’s house was to be built, “ as fast as the builders of the house should want the same that they failed to deliver it as fast as wanted, and that by reason of the failure the defendant suffered a loss equal to the balance due the plaintiffs at the contract price. It is urged that, in estimating this loss, the auditor considered damages which arose from a breach of contract between the defendant and the builder of the house. We do not think the report can fairly be so interpreted. It states that the defendant, in connection with his contract with the plaintiffs, made a contract with a Mr. Beals to build the house and have it ready for plastering before cold weather, and that owing to the plaintiffs’ failure to furnish lumber it was not done until the next winter. It was necessary to show that the defendant had arranged to have the house built before win [490] ter, in order to establish the fact that the plaintiffs’ failure to deliver the lumber as agreed delayed or damaged the defendant. It does not appear that the defendant suffered any loss through breach of a contract with Beals, much less that the auditor reckoned such loss in his estimate of the defendant’s damage by reason of the plaintiffs’ failure in the matter of time. It is also urged that the defendant’*, loss is calculated with relation to his damage in the matter of his house. This we think is proper, provided the defendant’s damage can be considered here at all, because the contract vims with reference to the building of the house, and in terms to furnish the lumber “ as fast as the builders of the house should want it.” It does not appear upon the report that the auditor considered any remote or consequential damage,* but the fair intendment is that he estimated only the direct loss to the defendant which arose from the plaintiffs’ failure to furnish the lumber as agreed, it is unquestionably true that upon the plaintiffs’ default the defendant was bound to conduct himself reasonably, and, i£ it would clearly be less detrimental to go into the market and purchase the lumber than to delay till the plaintiffs could furnish it, he was bound to pursue that course ; but the auditor finds that the plaintiffs’ failure arose from there not being any lumber for sale in the vicinity, the mills having been stopped by the drouth, and under such circumstances, and in absence of anything to indicate that this claim was made before the auditor, and in view of the amount of damages which the auditor has found, we cannot presume that it would have been less detrimental to the parties to have sent into some ether section of country and purchased lumber and paid the cost of transportation. Nor can wc generally presume that the auditor has determined matters before him upon an improper basis simply because he might have done so. The auditor finds that the plaintiffs were dependent for the lumber they promised to furnish, upon the mills in the vicinity ; and that this was understood by all parties at the time of the contract, and that their default arose from the failure of these mills, and from no' negligence or want of exertion on their part; and it is urged that as the defendant understood their source of supply when he contracted, the plaintiffs are excused for the delay which the failure of the source of supply occasioned. Such an understanding is rather in the nature [491] of as expectation than of an agreement. The plaintiffs were not limited by it to the product of these mills, and it is difficult to distinguish this in principle from a contract for the future delivery of produce which the parties both expect or understand at the time will be raised or grown and obtained in a particular section of country, but which is not grown in that section on account of a failure of the crop from bad weather. No claim is made here, nor does it appear that auy was made before the auditor, but that the defendant accepted this lumber iu such a manner as to preserve his claim for damages for its non delivery according to the terms of the contract. The only remaining question is whether the defendant’s damages are a proper subject of recoupment, or must be recovered in an independent action, or which is equivalent, under a plea in offset. The cases Dyer v. Jones, 8 Vt. 205; Hubbard v. Belden, 27 Vt. 645; Barker v. Troy & R. R. R , 27 Vt. 780, amoflg others in this state apply this principle iu reducing -the recovery in actions for wages by deducting from the stipulated price, the damage which has accrued to the employer by the partial failure of the other party to fulfil his contract. In the case Swift v. Harriman, 30 Vt. 608, the same principle is applied to a contract to carry on a saw mill, and in Brackett v. Morse, 23 Vt 557, to a contract to pasture a given number of cattle; in the ease Morrison v. Cummings, to a contract to construct a .certain number of charcoal kilns. It will be seen, by examination, that it is not the subject matter of the contract that determines the applicability of this mode of recovery, but the nature of- the agreement and of the breach of it. In Keyes v. The Western Vt. Slate Co., 34 Vt. 83, which is cited by the plaintiffs, the court decline to lay down any rule upon this subject, and do not find it necessary to decide anything with regard to it, but in the opinion reported iu that case, Allen v. Hooker, 25 Vt., is cited in connection with a remark that the defendant in an action for goods sold may, under the general issue, reduce the damages by showing a breach of warranty of the goods. In Bragg v. Bradford, 33 Vt. 38, this doctrinéis very fully and ably discussed, and it would seem that this case falls fully under the rules there laid down by Alpis, J. The plaintiffs have substantially but not strictly performed their [492] contract — the defendant has been bencfitted — the failure was not wilful — the parties cannot rescind. In additiou it may be remarked that in such a sale of goods as this in which the delivery is to be from time to time as wanted, it is difficult to distinguish in principle between a recoupment of damages for a failure to meet the contract in quality or in quantity, and a failure to meet the contract in time or readiness to deliver as wanted. We are all of opinion that this case is clearly within the reason of the rule which permits the recoupment of damages, and therefore the judgment of the county court is affirmed.