Summary
letting the jury decide whether a totality of circumstances could support an inference that the defendant breached its contract and intended to prevent the plaintiff from ever performing
Summary of this case from Dijo, Inc. v. Hilton Hotels Corp.Opinion
No. 31185.
April 16, 1934.
1. TRIAL.
In passing on defendant's motion to strike out plaintiff's evidence and grant directed verdict for defendant, testimony for plaintiff must be taken as true and proper inferences therefrom be drawn favorable to plaintiff.
2. LOGS AND LOGGING.
In suit for breach of contract for hauling defendant's timber, whether defendant breached contract and intended to prevent plaintiff from performing held for jury under evidence.
APPEAL from Circuit Court of Tishomingo County.
J.A. Cunningham and Floyd W. Cunningham, both of Booneville, for appellant.
A breach of contract is a nonperformance of any contractual duty of immediate performance. A breach may be total or partial, and may take place by failure to perform acts promised by promisor, or hindrance, or by repudiation.
2 Restatement of Law by American Law Institute, sec. 312, Contracts.
A positive statement of promisor or other person having a right under the contract, indicating that the promisor will not or cannot substantially perform his contract, constitutes a breach.
2 Restatement of Law by American Law Institute, sec. 318; Cook v. England, 92 Am. Dec. 626; People v. New York Produce Exchange, 29 N.Y. Supp. 307.
The case at bar constituted an independent contract and the plaintiff had full authority to determine the mode and manner of his work, and was only responsible to the master to produce the results contemplated by the contract, and which he himself could do, or see to the doing of it, or could have it done by others. The breach of such a contract gives the injured party the right to declare it breached, and to file a suit, at once, for the damages to him proximately flowing from the breach of the contract.
18 R.C.L., sec. 29; Harness et al. v. Kentucky Flour Spar Co., Ann. Cases 1914A 803; Mt. Pleasant Stable Co. v. Steinberg et al., 15 A.L.R. 749 and 756, par. III, subsection b, Logging and Timber Contracts; Columbus Mining Co. v. Ross et al., 50 A.L.R. 1394; McGinnis v. Studebaker Corp., Ann. Cases 1917B 1190; Central Trust Company of Illinois v. Chicago Auditorium Association, 60 L.Ed. 811; Roehm v. Horst, 44 L.Ed. 960.
It is no longer open to question in this court that, as a rule, where a party bound by an executory contract repudiates his obligations or disables himself from performing them before the time for performance, the promisee has the option to treat the contract as ended, so far as further performance is concerned, and maintain an action at once for the damages occasioned by such anticipatory breach.
Central Trust Company of Illinois, etc., v. Chicago Auditorium Association, 60 L.Ed. 811; Roehm v. Horst, 44 L.Ed. 953; 13 C.J. 657, Contracts, secs. 733 and 804; 17 C.J. 788, sec. 113; Friedlander v. Pugh, etc., 43 Miss. 111; Brach v. Stewart, 104 So. 162, 41 A.L.R. 1172; Eastman-Gardner Hardwood Co. v. Hall, 102 So. 270; Stoddard v. Carter, 82 So. 70; 13 C.J., pages 651 and 658, secs. 725 and 736.
The defendants contend that there was an accord and satisfaction upon which issue was struck in the pleadings. The record made by the plaintiff does not only affirmatively show that there was no accord and satisfaction, but specifically and affirmatively denies this proposition.
1 C.J. 560, Accord and Satisfaction, sec. 82; Cooper Rock v. Yazoo-Miss. Valley R.R. Co., 35 So. 162; 13 C.J. 658, sec. 735.
The contention of the defendants that proof of damage was too indefinite and unintelligible to be submitted to the jury, is another vain proposition in the very face of the best authorities.
Eastman-Gardner Hardwood Co. v. Hall, 102 So. 270; Beach v. Johnson, 59 So. 800; Stoddard v. Carter, 82 So. 70; Bluethenthal v. McDougal, 141 So. 291; Brach v. Stewart, 104 So. 162, 41 A.L.R. 1172; Columbus Mining Co. v. Ross et al., 50 A.L.R. 1394; Mt. Pleasant Stable Co. v. Steinberg et al., 15 A.L.R. 749, 751, para. III, subsection b, Logging and Timber Contracts; Vicksburg R. Co. v. Ragsdale, 46 Miss. 458.
W.C. Sweat, of Corinth, for appellees.
It is uniformly held, so far as I know, that a mere statement or declaration of a party that he will refuse to perform a contract in some particular is not sufficient to constitute a breach thereof. He must go further and fail in some material respect to carry out the contract.
Clark Co. v. Miller, 154 Miss. 233, 122 So. 475; 13 C.J. 654, sec. 727; Milton et al. v. Stone Lbr. Co., 36 F.2d 583; Dingler v. Oler, 29 L.Ed. 984; McGuire v. Meils Lbr. Co., 97 Minn. 293, 107 N.W. 130; Benjamin on Sales 568; In re Smoot's case, 21 L.Ed. 107; Wright v. Petree, S. M. Ch. 282; Halls v. Thompson, 1 S. M. 443; Ayers v. Mitchell, 3 S. M. 683.
A full and complete settlement was consummated between the parties, and, therefore, an accord and satisfaction.
Cooper v. R.R. Co., 82 Miss. 634, 35 So. 162; Phillips v. St. Paul Fire Marine Ins. Co., 156 Miss. 41, 125 So. 705; Rucker v. King Const. Co., 159 Miss. 387, 131 So. 872; Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189; May Bros. v. Doggett, 155 Miss. 804, 124 So. 476; Greener Sons v. Cain Sons, 137 Miss. 33, 101 So. 859; Domick v. Brookhaven Box Co., 153 Miss. 72, 120 So. 193; Enock v. Cotton Co., 139 Miss. 234, 104 So. 92; Blue Ribbon Creamery v. Monk et al., 147 So. 329.
The suit was prematurely brought.
Upton v. Adcock, 145 Miss. 372, 110 So. 474; Birdsong v. Ellis, 62 Miss. 418; Lee v. Hampton, 79 Miss. 321, 30 So. 721; Hairston v. Sales, 6 S. M. 634; American Oil Co. v. Byrd, 137 Miss. 455, 102 So. 542; Batesville S.W.R. Co. v. Vick, 134 Miss. 480, 99 So. 7.
The appellant failed to show by his evidence that he was ready, willing and able to carry out his contract.
Leek Milling Co. v. Langford, 81 Miss. 728, 33 So. 492; Monticello Plywood Box Co. v. Haynie, 167 Miss. 622, 142 So. 497.
In the case at bar appellant introduced no evidence to show that he was able to perform the covenants contained in his contract. Since he did not do this, there was nothing that the court below could do except give a peremptory instruction to find against him.
Argued orally by J.A. Cunningham, for appellant, and by W.C. Sweat, for appellees.
The appellant was the plaintiff in the court below and filed suit for damages for the breach of a contract made between the appellant and the appellee for the hauling of timber upon certain lands belonging to the appellee. The parties estimated the timber to be ten million feet, and that it would take, approximately, fourteen months for it to be logged. The appellee was to construct a logging road through its timber, and was to pay the appellant one dollar and fifty cents per thousand feet from "a turn around to a half mile," or for timber within one-half mile from the logging track, and fifty cents for each additional half mile or fraction thereof.
The appellant testified that it was understood at the time the logging operations were begun that the appellee expected him to defer logging operations in the bottoms, or swamps, until spring, and that he was to begin by logging the scattering timber; but that, before spring, while the ground was wet and boggy, he was directed to go into the swamps and cut the timber there. He could not use his teams in the swamps, and provided a skidder to get the logs, having help which he had employed to assist him. He further testified that the appellee did not give him a fair scale of the logs he was hauling, and that after he finished logging in the swamps, the appellee failed to extend its logging line, and told him that they would not pay him more than one dollar and fifty cents per thousand feet. He further testified that he had borrowed money from the appellee, giving a mortgage upon his wagons and teams, and that the appellee was pressing him for the payment of this indebtedness; that he surrendered some of his wagons and teams to satisfy the mortgage indebtedness, but told the appellee, at the time, that such settlement would not embrace the breach of the contract; and that he was going to sue for such breach, the settlement being made merely to take care of the amount of logs already hauled and for the debt due under the mortgage.
The appellee pleaded that the appellant had not carried out his contract by hauling a sufficient amount of logs to supply their needs; that the appellant was unable to carry out his contract; that there was a complete settlement of the amount involved in the debt and contract; and that the settlement included a full release.
The appellant introduced several witnesses who supported his statements as to conversations had at the settlement, and one witness to the contract at the time it was made with the manager of the appellee. At the conclusion of the appellant's testimony, there was a motion by appellee to strike out the evidence, and grant a directed verdict for the appellee, which motion was sustained by the court, and judgment entered thereon.
The rule is that before a peremptory instruction can be granted, or before the evidence for the plaintiff can be stricken out and judgment entered for the defendant, the testimony for the plaintiff must be taken as true, and proper inferences therefrom must be drawn favorable to the plaintiff.
We have examined the complete testimony for the plaintiff in this case with care, and while we have not undertaken to set out in detail what it is, we think it was improper to have granted a peremptory instruction. If the plaintiff's testimony be taken as true, there was no settlement of the breach of the contract, and the contract was breached.
It is true a mere verbal statement by the defendant would not be sufficient evidence of a breach that would relieve the plaintiff from performing his contract; but when we take all the facts together, they show that a portion of the logging line was not constructed, and that the plaintiff was required to get logs from the swamps at a time when it was disadvantageous to the plaintiff to do so, and the refusal of the defendant to pay the extra fifty cents for each extra half mile or fraction thereof, coupled with the fact that the defendant was pressing the plaintiff and threatening to foreclose the mortgage, we think were sufficient to lead a jury to infer that the defendant, in this case, breached its contract, and intended to prevent the plaintiff from ever performing his contract.
We, of course, do not know what the testimony for the defendant would have been, but we must deal with the record as it is before us. We think the court below was in error in striking out the evidence and rendering a judgment for the defendant, and the judgment, therefore, will be reversed and the cause remanded for a new trial.
Reversed and remanded.