Parker v. McKannon Bros. & Co.

Watson, J. The contract between the plaintiff and the defendants was dated October 30, 1899, and was for a term of five years. The verdict has established that in June, 1900, the defendants refused to take any more instruments made by the plaintiff under his patent, though the plaintiff was ready to deliver and in fact tendered more to them./ This was such a breach of the contract by the defendants as gave the plaintiff the right to treat the contract as absolutely and finally broken. The plaintiff elected so to treat it and brought this action for damages. That upon such a breach of a contract damages may be recovered for a non-performance of the whole contract, that is, prospective as well as what had already been sustained at the time of the commencement of the suit, was laid down by this court in Royalton v. Royalton and Woodstock Turnpike Co., 14 Vt. 311, and again in Remelee v. Hall, 31 Vt. 582. Hence the question must be considered as settled in this State. See [102] also Pierce v. Tennessee Coal, Iron & Railroad Co., 173 U. S. 1, 43 L. Ed. 591; Cutter v. Gillette, 163 Mass. 95, and Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205, 54 Am. Rep. 676. Nor are the cases of Waterman v. Buck, 58 Vt. 519, 3 Atl. 505, and Whipple v. Fairhaven, 63 Vt. 226, 21 Atl. 533, relied upon by the defendants, in conflict therewith. In Waterman v. Buck, the orator brought his bill for an injunction to restrain the defendants from depositing sawdust and waste in a certain stream, whereby the orator’s meadow was damaged, and for damages. It was held that damages accruing subsequent to the bringing of the bill could not be considered because not brought upon the record by supplemental bill. In Whipple v. Fairhaven, the orator sought an injunction restraining the defendant from maintaining a certain culvert, and for damages already suffered by the orator by reason of the discharge of water through the culvert upon his premises. The report of the case does not show that the pleadings stood differently from those in Waterman v. Buck, and it was held, upon the authority of that case, from which it was said not to be distinguishable in principle, that nothing could be recovered for damages done after suit brought. The value of the contract to the plaintiff at the time of the breach was shown by assessing the entire damages. As bearing upon that question, evidence showing the cost of the instruments under the contract, what portion of the cost was labor, how many instruments the plaintiff could make per week, the w!ork or business in which the plaintiff was engaged during the time between the bringing of the suit and the trial, and whether he could furnish instruments according to the contract thenceforth to the expiration of its term1, was properly received; for it was legitimate to show the nature of the con [103] tract, the circumstances surrounding and following its'breach, and the consequences naturally and plainly traceable to it. Wakeman v. Wheeler & Wilson Co. before cited. The defendants introduced expert testimony in defense tending to show that there was no patentable difference between the plaintiff’s instrument and the Pollman instrument. To meet this evidence, the plaintiff, in rebuttal and subject to defendants’ exception, was permitted to testify and “demonstrate” by sounding, the difference between the tone of his instrument and that of the Pollman instrument upon which defendants’ evidence tended to' show the plaintiff’s instrument was an infringement, and was also permitted to testify that the difference in tone was due to the difference in the shape of the instruments. It is argued that this was permitting the plaintiff to testify as an expert, to do which he was not competent. But the exceptions do not show: that the question of his competency was raised in the trial court, hence it is not for consideration here. In submitting the question of damages to the jury, in case their verdict should be for the plaintiff, the jury were instructed to return a general verdict for the amount of damages found covering the period up to the time of the trial. Also to state as a special finding what sum they had included in the general verdict, for damages sustained by the refusal of the defendants to receive and pay for instruments between the time of the commencement of the suit and the time of the trial. The amount of damages specified in the general verdict and in the special finding so made were the same. The jury also found specially the amount of damages for the period between the time of the trial and the expiration of the term of the contract. The defendants moved to set aside the verdict and award a new trial on the ground-that the verdict was so uncertain, [104] inadequate, irregular, ambiguous, defective and illegal that no judgment could be legally rendered thereon. This motion was Overruled and judgment rendered pro forma for the plaintiff to recover the full amount of damages named in the general verdict and in the special finding, to which the defendants excepted. It is urged that by one of the special findings it appears that the plaintiff had suffered no damages by reason of the breach of the contract before the commencement of this suit, which, it is contended, is equivalent to a finding that the suit was brought upon a claim at that time without foundation. But this position is untenable, for upon the breach of the contract the plaintiff’s right of action accrued. Emack v. Hughes, 74 Vt. 382, 52 Atl. 1061. Judgment affirmed.