Dennis v. Stoughton

The opinion of the court was delivered by Ross, J.

The defendant supposed he had ordered a press with counter-shaft attachment. When it came he found it was a press with power attachment with chain-belt. He knew what he had received and what the plaintiff’s price was for the same ; that the power attachment with chain-belt was forty-five dollars, while with counter-shaft it was but seventeen dollars. By setting up and using the press and power attachment with chain-belt he accepted *375 the same, and bound himself to pay the price which he knew the plaintiff asked for that kind of press and attachment. That he wa.s induced to accept it by the stress of circumstances in which he was placed, did not qualify the acceptance, nor lessen, nor modify, the legal effect thereof. That he notified the plaintiff of the mistake, and that the plaintiff undertook to give him leave to exchange the attachments, do not vary the legal relations of the parties. He set up the press with the power attachment sent before he received the plaintiff’s letter giving him leave to exchange, and still retains and uses the power attachment with chain-belt. Under these circumstances, the plaintiff has the right to recover the price which the defendant knew he asked for the press and power attachment when he received and accepted the same. Gilson v. Brigham, 43 Vt. 410 .

II. During the negotiations, which were carried on by letters, the defendant asked the plaintiff if he had the presses and counter-shaft power attachments in store so that he could ship at once. The plaintiff replied that he had the presses, power attachments and counter-shafts at the factory and could ship on short notice. In a few days thereafter, the defendant ordered the press and power attachment to be sent immediately. This was September 4, 188^. September 13, 1880, the defendant wrote the plaintiff that he had heard nothing from his order, to ship immediately; that he was ready to use it, and asked for directions in regard to the timbers to be used in setting up the press. He received a reply September 15, saying that the press would be shipped that day, or the next, and also giving directions in regard to the timbers required. The defendant went immediately about making preparation to set up the press. The press was not shipped complete so as to be received until September 30th. The directions in regard to the timbers, given in the plaintiff’s letter of September 15, were for those necessary for the counter-shaft attachment. The plaintiff then understood the defendant’s order to call for the power attachment with chain-belt, and by some mistake gave the wrong directions. On these facts the defendant contends that the press and power attachment were not shipped so early as required by the contract; that he suffered damages by the non-fulfillment *376 in this respect, on the part of the plaintiff; and that he should be allowed to reduce the amount of damages due the plaintiff by the amount of damages he has sustained by the extra expense in putting up the press, and loss of time of his workmen, and in loss of custom, and loss of stock on hand. The referee has found that-the defendant sustained damages in all these respects. The plaintiff claims that, inasmuch as no definite time was agreed upon for the shipment of the press and power attachment, he cannot be held liable for damages occasioned by the delay. When no definite time is fixed by the contract in which an act thereby agreed to be done is to be performed, the law implies it is to be performed within a reasonable time. In determining what is a reasonable time, regard is to be had to the circumstances and what the parties, from what passes between them, do or have a right, acting as prudent men., to understand is a reasonable time for performance. The defendant inquiring of the plaintiff if he had the presses in store so that he could ship at once, his'order to ship at once, and immediately, as he wanted the press' to use, as well as the defendant’s reply that he had them at the factory and could ship on short notice, and that it would be shipped that day or the next,— all show that both parties contemplated an immediate fulfillment of the order. The fact that the plaintiff had to send to Chicago for the power attachment with the chain-belt and was delayed in obtaining the same, not communicated to the defendant, neither before nor when the order was received and accepted by him, does not vary the legal relations of the parties in regard to the time in which the plaintiff was bound to fill the order and ship the press. The plaintiff was made aware that the defendant was ready to use the press, and that he was preparing to set it up as soon as received. This being the legal relation of the parties in regard to the time of the performance of the contract by the plaintiff, he must be held liable to the defendant for all damages resulting directly and naturally from his delay in the performance thereof. It is contended by the plaintiff that he was under no obligation, by the terms of the contract, to give defendant directions in regard to the timbers he would need to set up the press. It would be naturally expected by a purchaser, when the m'achine *377 purchased is to be set up in a particular manner to do good and effective work, that the vendor would furnish directions in that particular. In the case at bar, the defendant called upon the" plaintiff for such directions, and he furnished them without objection. It is too late for him, after the directions have been treated by both parties as a part of the contract and acted upon, as the' plaintiff had every reason to suppose they would be, to contend that they are not a part of the contract. • We think that the plaintiff is liable to the defendant for the loss incurred by him in changing the timbers, and for the loss of time of his workmen, and for the loss on his stock, occasioned by the plaintiff’s breach and non-fulfillment of the contract, in giving erroneous directions, and by •unreasonable delay in shipping the press. The loss of custom, we think, is too indirect and remote to be allowed as the direct and natural result of the plaintiff’s non-performance of the contract.

The plaintiff further contends that the defendant cannot be allowed these damages in this suit, which is said to be assumpsit in the common counts, with no plea filed except the general issue. It is the general doctrine in regard to judgments on referees’ reports, announced in repeated decisions of this court, that the judgment shall be in accordance with the facts reported, if the pleadings can legally be so amended as to accommodate themselves to, and include, the facts reported. There can be no doubt but that the pleadings could be legally amended in this case so as to embrace a plea of set-off in assumpsit founded on a breach of the same contract in suit, nor that the defendant would be entitled to recover these damages under such plea. But we do not think such plea necessary to entitle the defendant to the allowance of these damages in this suit. They arise out of the same contract on which the plaintiff grounds his right of recovery. When a defendant is sued for a breach or enforcement of a contract, he may show, in recoupment or reduction of the damages which the plain .tiff is entitled to recover, such damages as he has sustained by the plaintiff’s breaches of the same contract. Hartland v. Henry, 44 Vt. 593 ; Davenport v. Hubbard, 46 Vt. 200 .

The defendant paid into court, under' the rule, after this suit *378 was brought, two hundred dollars to cover the amount which he conceded the plaintiff was entitled to recover, and his costs of suit, to the time of the payment. If the defendant is allowed to reduce the amount due from him to the plaintiff for the press and power attachment with chain belt, by the amount of the damages which we hold he is entitled to for the plaintiff’s failure to perform his part of the contract, it is conceded that the sum thus paid into court is sufficient to cover the balance due the plaintiff and his costs of suit to the time of such payment into court. On this state of the law and facts, the plaintiff is entitled to the sum paid into court as tender of amends and costs in this suit, and the defendant is entitled to recover his costs since the time of such payment.

The judgment of the County Court is reversed, and judgment is rendered that the plaintiff is entitled to the two hundred dollars paid by the defendant into court, and for the defendant to recover his costs since such payment.