Walls v. Carolina Spruce Co.

AlleN, J. The refusal to enter judgment of nonsuit as to the first ■cause of action to recover damages for burning the wood of the plaintiff was not prejudicial to the defendant as the jury did not answer the third issue and there has been no recovery on this cause of action. There was, however, evidence sustaining this cause of action fit for the consideration of the jury. The evidence of the plaintiff tended to prove that the wood was burned by the sparks coming from a skidder; that the skidder had no .spark arrester or other protection against fire; that there was a large •collection of very inflammable matter all around the skidder; that the sparks fell from the skidder on this matter and ignited it and was then communicated to the wood, and that the skidder was operated by the defendant, and not by an independent agency, and this brings the plaintiff’s case within the principle of Williams v. R. R., 140 N. C., 623; Currie v. R. R., 156 N. C., 422, and many other authorities. As to the second cause of action for the conversion of 250 cords of wood, the controversy was as to the quantity of wood taken and sold by the defendant, and as, according to its own evidence, it has in hand the proceeds of the sale by it. of 19 cords, it must at least account for this much, the jury having found against it on its counterclaim in response to the fifth issue; and the same may be said of the third cause of action on the verbal contract for logging, the plaintiff claiming $50 to be due him under this contract, and the defendant admitting $8.11 to be due and unpaid. The motion for nonsuit on the fourth cause of action is upon the ground that there is no evidence of a breach of the contract which requires the defendant to furnish the gondola cars to the plaintiff which he procured from the Black Mountain Eailroad. [666] . The plaintiff testified that he repeatedly called on the agent of the Black Mountain Railroad Company for cars; that the agent would place the cars as often as 20 or 25 times before the fire on the defendant’s track; that he would then notify the defendant that the cars were placed; that the cars would be used by the defendant for its own purposes; that he complained to the defendant about not getting ears; that he complained to the Champion Fiber Company and it furnished him twelve cars of which he got only three; that the cars set on the defendant’s track at his request were sufficient in number to have hauled the $1,000 worth of wood that was burned before it was burned; that had the cars which he procured been delivered to him that he would have hauled the wood before it was burned, and that the number of cars that he procured were sufficient to have hauled'his entire output of wood had they been delivered to him; that the cars so furnished to him by the Black Mountain Railroad Company at his request were all gondola cars, and that he had only gondola cars placed. The plaintiff also proved by Charley "Wilson that he went to the office of the Black Mountain Railroad Company repeatedly and ordered ears for the plaintiff; that- the agent would immediately place the cars on the defendant’s tracks for the use of the plaintiff, and the defendant would then use them and not deliver them to the plaintiff; that a sufficient number of cars were placed on the defendant’s tracks to have delivered all of plaintiff’s wood, and that had the cars procured for the plaintiff been .delivered to him the 200 cords of wood that were burned could and would have been delivered before they wei'e burned; that all the cars witness procured from the railroad company for the use of the plaintiff were gondola cars. Plaintiff also proved by Frank Ewing that plaintiff often sent him to the office of the railroad company to order cars; that thereupon the agent would place the cars on defendant’s tracks, and the defendant, instead of delivering them to the plaintiff, would use them for its own purposes; that all of the cars witness saw furnished were gondola cars. Plaintiff introduced the agent of the Black Mountain Railroad Company, who testified that Mr. Walls and his men would order cars and he would place them on the defendant’s tracks and notify the defendant they were for this plaintiff; that later he would notice that these cars were billed out by other shippers than the plaintiff. This evidence, if true, clearly established a breach of the contract to furnish the plaintiff with the gondola cars he procured from the railroad, and the evidence of the defendant to the contrary simply raised an issue to be settled by the jury. ■The exception to the charge on the first issue is well taken, the error consisting in imposing the duty on the defendant of furnishing to the [667] plaintiff all gondola ears it received, which could be operated on the track of the Spruce Company, when the contract only required it to furnish the gondola cars the plaintiff procured- from the Black Mountain Railroad, and the error was upon a vital question as the evidence of the defendant tended to prove that while it had and used other cars, the plaintiff only procured 18 gondola cars from the railroad, and that these were furnished him by the defendant. There is also error in charging the jury they could consider the burned wood as an item of damage for breach of contract. Extinguisher Co. v. R. R., 137 N. C., 278. In the case cited, property delivered to the defendant for transportation was destroyed by fire, not due to the negligence of the defendant, when it would not have been at the place of the fire but for delay in forwarding, and it was held that the defendant was not liable, and the Court said: “The defendant by its failure to ship within a reasonable time became liable for such damages as naturally and proximately resulted from such breach of contract or duty. Lindley v. R. R., 88 N. C., 549. Pearson, J., in Ashe v. DeRossett, 50 N. C., 299, 72 Am. Dec., 552, says: ‘When one violates his contract, he is liable only for such damages as are caused by the breach, or such as being incidental to the act of omission or commission, as a natural consequence thereof, may reasonably be presumed to have been in contemplation of the parties when the contract was made. This rule of law is well settled, but the difficulty arises in making its application. In that case a quantity of rice was sent to the mill of defendant’s intestate pursuant to a contract that it was to be worked in its Turn.’ The rice was not worked in its Turn.’ The mill with its contents was thereafter burned. In an action on the contract for failure to have the rice beaten in its Turn’ the plaintiff claimed the value of the rice as the measure of the damage to which he was entitled. This Court held that in the absence of any evidence of negligence in respect to the burning of the mill, he was not entitled to recover the value of the rice. The Court said: ‘There is nothing to show that the contingency that the rice might be burned if left in the mill was in the contemplation of the parties. On the contrary, its being burnt was an accident unlooked for and unforeseen, and can in no sense be considered as having been caused by the fact that it was not beat in the turn promised by the defendant’s intestate; consequently the damages were too remote.’ . . . His Honor should have told the jury that there was no evidence showing that the delay in shipping was the proximate cause of the destruction of the property.” If there has been a breach of the contract it was proper for the jury to consider the loss of profits as an element of damages under the authority of Wilkinson v. Dunbar, 149 N. C., 20, which was decided by [668] a unanimous Court, bas been frequently approved and is directly in point. Tire fact that the plaintiff testified that he stopped work because the wood was burned was but another way of stating that he could not continue his work unless the wood was moved, so he would get the proceeds for use, and that the failure to move the wood according to the contract was the cause of the loss of profits. We have examined the exceptions to the evidence and find them without merit, except we do not think it was material to any issue to prove that the plaintiff sold his camp outfit and tools at half price to enable him to pay his debts, and this evidence had a tendency to prejudice the cause of the defendant before the jury. New trial.