First National Bank of Everett v. Sheet

WiNsnow, C. J. There are two controlling questions in this case, one of fact and one of law. The question of fact is [437] whether Snell was a purchaser of the lumber for resale to the brewing company or was simply the agent of the Weidauer Co., employed by it upon commission to make the sale. In case Snell was a purchaser, the question of law which arises is whether he is entitled to offset lost profits upon the 80,000 feet of lumber never delivered to the brewing company. 1. The question whether Snell was a purchaser or a selling agent is not free from difficulty. The fact that his contract with the Weidauer Co. provided that he should have a commission of fifty cents per thousand is relied on as conclusive proof that he was simply an agent. We do not so regard it. It is true that it tends in that direction, as do some expressions in the correspondence, but there are other expressions in the correspondence and acts of the parties which tend in the other direction. It seems to be a case where some of the facts indicate that a sale was intended and others that a mere agency arrangement was intended. Thus it appears that the order was directly given by Snell to Weidauer & Oo. with directions to invoice to him (Snell), and that the invoices were in fact made out in these words: “Sold to Franlc N. Snell, Esq.,” and sent by mail to him in all respects as if he were a purchaser. It also appears that Snell made a contract in his ■own name with the brewing company in all respects as though he were selling the lumber on his own responsibility; that he collected the bills himself, and made his own settlements with the Weidauer Co. So it is a case where there is some considerable confusion in the facts and where different conclusions might be drawn by different minds as to the relationship which the parties expected and intended should exist between them. There was also considerable evidence tending to show that it was a general and well known custom in the business, both in Wisconsin and Washington, that a wholesaler or jobber like the defendant be allowed a special reduction from quoted prices, frequently spoken of as a commission, even though it was understood that he was buying on [438] his own account for resale at a profit. The court found that such a custom existed and the finding seems to he based upon sufficient evidence. Taking the entire evidence in the case, we are unable to say that the finding of the trial court on this question is against the clear preponderance of the evidence. 2. Snell being a purchaser for resale, the question arises as to the measure of his damages on breach of the contract by the vendor. Damages for failure to fulfil an executory contract for delivery of goods are awarded on the basis of compensation or indemnity, and the well understood general rule is that they consist of the difference between the contract price and the market value at the time and, place of delivery. “The basis of this rule is that, on failure of the vendor to deliver, the purchaser may go into the market and at the time and place of delivery, and supply himself with the same kind of goods at the market price.” Cockburn v. Ashland L. Co. 54 Wis. 619, 12 N. W. 49. Special circumstances sometimes require that exception to this general rule be made. For instance, where the article is one not to be obtained in the market and the vendor knows that it is purchased to fill a pre-existing contract, the damages for failure to deliver will be the difference between the contract price to the first vendee and the contract price to the second vendee, unless the second contract price be such as to yield an extraordinary and unusual profit. Guetzkow Bros. Co. v. A. H. Andrews & Co. 92 Wis. 214, 66 N. W. 119. This exception to the general rule does not apply here, because it is based upon the entire absence of a market and of a market price for the article, rendering the application of the rule a practical impossibility. In the present case it is proven that the lumber, could be, and in fact some portion of it was, purchased in the market. Another exception to the general rule is noted in Foss v. Heineman, ante, p. 146, 128 N. W. 881, but it has no application here. [439] The court found on sufficient evidence that the market price of the lumber in question at the time and place of delivery was $39.50 per M. As the contract price to Snell was $38.50 per M., his damages for the nondelivery of 80,000» feet were $1 per M. instead of $2.50 per M., as the court allowed him. In other words, the allowance on defendant’s counterclaim was too much by the sum of $120. The judgment should be modified as of its date by adding to the sum allowed to the plaintiff the sum of $120, making the total amount of the plaintiff’s recovery $564.67, damages and costs. By the Court. — Judgment modified with costs as indicated in the opinion, and as so modified affirmed.