Milwaukee Coke & Gas Co. v. Central Wisconsin Supply Co.

The following opinions were filed February 12, 1924: Crownhart, J. It is the contention of the plaintiff that the contract called for the delivery of the total output of the Kentucky Beaver collieries, located in Floyd county, Kentucky, from March 1, 1920, to March 31, 1921, at the [400] agreed price of $3.15 per ton f. o. b. cars at the mine. The output of the mine within the contract term was about 14,800 tons. The difference between the contract price and the market price was $38,339.11. Plaintiff demands judgment for this amount. The defendant contends that the plaintiff was not entitled to judgment for the following reasons: (1) The contract sued upon is void because it binds the defendant to the performance of an act that was legally impossible, and the contract is, therefore, without consideration; (2) Gladney had no authority, actual-or apparent, to sell the output of the mine; and (3) the directions of March 1, 1920, that all shipments of coal be consigned to the Steel & Tube Company of America was a resale of coal by plaintiff without profit and, consequently, it suffered no damages. We see no difficulty in sustaining the contract. It- is clear and unambiguous. It was made upon sufficient consideration and was capable of being executed. The mine was a developed and operating mine. Its output was approximated. It was entirely possible for the mine to produce large quantities of coal and deliver the same as provided in the contract. It did produce a definite and ascertained amount of coal during the contract period. We must therefore affirm the validity of the contract and treat it as capable of being performed. The verdict of the jury and the judgment of the court that Gladney acted with apparent authority, and that the plaintiff reasonably relied upon such apparent authority in executing the contract, were not excepted to by the defendant and are not brought before the court on cross-appeal. The validity of the execution of the contract, therefore, stands as a verity. If the question were before us, we would not hesitate to find that the contract was lawfully executed on the part of the defendant. The direction of the plaintiff to the defendant that the coal be consigned to the Steel & Tube Company of America was within the contract provisions, and the question of [401] whether the plaintiff would have received a profit or not from its dealings with the Steel & Tube Company was not properly a subject for consideration in this case. A considerable time was taken up at the trial concerning transportation problems from the mine to the' outside markets. This was beside the issue. The issue was the difference between the market price f. o. b. at the mine and the contract price. 'Transportation problems may have affected that price, but the price was proven by direct evidence of the fact. As we view this case there was but one' question sharply litigated, and there is but one question here, and that is, What was the measure of damages that plaintiff suffered by reason of the defendant’s repudiation of- its contract? The contract called for the output of the mine. That output was indefinite and uncertain, but it was capable of being made certain, and at the trial the fact was undisputed that the output was a total of about 14,800 tons. The contract price of the coal was $3.15 per ton f. o. b. at the mine, but this was subject to being increased if the wages of miners were increased during the contract period. They were so increased, which increased the cost of the coal. So that the total difference between the contract price and the market price amounted to $38,339.11. This seems to us the measure of damages, as presented by plaintiff’s case. The fundamental idea of allowing damages.for breach of contract is to put the plaintiff in as good a position as he would have been but for the breach, — this according to principles of justice. Departures from this elementary principle come from inability to apply the rule under all circumstances. In the present case we find no insuperable difficulty in ascertaining to a reasonable certainty plaintiff’s damage within the rule. 8 Ruling Casé Law, “Damages,” § 8; 1 Sutherland,. Damages, § 12; 3 Williston, Contracts, § 1338. The plaintiff is not to profit by defendant’s breach; it is to [402] have the benefit of the contract as if performed as contemplated. It is entitled to the profits on the instalments of coal as they should have been delivered, and it must accept deductions therefrom on instalments which would have been delivered under the contract where it is shown to a reasonable certainty that such deliveries would have been made and that such losses would have resulted if the contract had been performed. The defendant attempted to prove that for the last three months of the contract period the mine was closed down for lack of orders, but that had the mine been operated, under the contract as claimed by plaintiff, it could and’ would have produced the coal as estimated in the contract, modified by the proof as to the probable production. Defendant claims on that basis a deduction of the difference between the contract price and the market price at point of delivery — the sum of $9,535, — which plaintiff would have lost during the three months if the contract had been carried out. Plaintiff submitted some evidence to that effect. The record is indefinite and uncertain on this point. As we remember it, this estimate of loss for the last three months by the defendant was not questioned on the argument. The question arises, assuming this loss to be true, should the amount be deducted from the damages established by plaintiff? We think it should. The contract called for the entire output of the mine within the contract period. The deliveries were to be made by instalments in carload lots. The output is estimated in the contract. The situation under the proofs is unusual, but the fair measure of damages, it would seem, is the value of the- contract to plaintiff as it would have been if performed as a whole, if that is reasonably ascertainable. The actual output for the period of the term of the contract was ascertained at the trial. The probable output for the last three months of the term, had the contract been in operation, was attempted to be estimated within the contract conditions. We think on a retrial of that question the value [403] of the contract, if performed and carried out according to its terms, may be reasonably ascertained, assuming the defendant’s claim is not admitted. We are unable to say from the record that the defendant’s claim of probable output for the last three months of the contract period is admitted, or that defendant has made proof of its claim with sufficient certainty to permit judgment to be entered allowing such deduction, but if the plaintiff will accept the claim of the defendant it may be permitted to have judgment for its claim less the amount of $9,535. By the Court. — The judgment of the circuit court is reversed, with directions to enter judgment for the plaintiff for $38,339.11, less $9,535, provided the plaintiff shall file with the clerk of the circuit court, within ten days of the filing of the remittitur herein, its acceptance of the defendant’s claim for deductions to that amount; otherwise to. grant a new trial for the purpose of allowing the defendant to establish its claim for such deduction; the plaintiff’s claim for $38,339.11 to stand as proven, subject only to such deduction as may be established by the defendant in accordance with this opinion; the plaintiff to have costs in this court.