Plaintiff, appellant, declared as for a breach of contract whereby, in substance, defendant agreed to sell and plaintiff to buy 50,000 claret staves at $130 per thousand pieces, f. o. b. cars at Mobile. Of these 12,000, were delivered and paid for. Plaintiff sought damages for a failure to deliver the rest, 38,000. Under the court's instruction there was a verdict for plaintiff, and its damages were assessed at 1 cent. Plaintiff appeals.
Plaintiff did business at Portland, Me.; defendant at Mobile, in this state. The parties reached agreement after an interchange of letters and telegrams too numerous to be repeated. Plaintiff's understanding and statement of the contract appears in its letter of October 2, 1917. The requirement as to bundling the staves as afterwards modified, and is now of no importance.
It will be noted that the staves were to be delivered "f. o. b. cars at Mobile." The court knows judicially that the quoted stipulation *Page 188 meant that the staves were to be delivered on cars at Mobile without expense to plaintiff. Sheffield Furnace Co. v. Hull Coal Coke Co., 101 Ala. 446, 14 So. 672. And, ordinarily, it may be conceded, this stipulation puts upon the seller the burden of procuring the cars in which to make shipment. Elliott v. Howison, 146 Ala. 590, 40 So. 1018. But this obligation rests upon an implication common to all contracts in the absence of express stipulation to the contrary. The reason for this implication is thus stated in John O'Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N.W. 337:
"The general rule is that one who undertakes to accomplish a certain result, by necessary implication agrees to supply all means necessary to such result,"
— and the reason of the ordinary rule as between buyer and seller in the case of contracts to sell "f. o. b. cars" is thus stated:
"Both [meaning cars and the subject of sale] are alike in the open market, as much at the command of one as another, and the obtaining of each is equally essential to the accomplishment of the result."
But the following language of the court is to be observed and is peculiarly apt to the circumstances of this case to be presently stated:
"This general rule is subject to the qualification that, if any step toward such result is necessarily dependent upon the doing of any act or supplying of any facilities wholly under the control of the other party, the latter impliedly undertakes that such act shall be done or such facilities supplied, for otherwise he would occupy the absurd position of insisting that the contract absolutely bound one party to do that which the other could at will render impossible" — citing cases English and American.
No time was fixed for delivery; but the correspondence between the parties by wire and post, what they said and did in the partial performance of the contract (this shown also by correspondence), and the conditions obtaining at the time and affecting all transportation (these brought about by our preparations for the war then waging in Europe, the same being matters of common knowledge) — these evidential facts point without contradiction or adverse inference to the conclusion that the mutual understanding and intention of the parties was that deliveries were to be made on cars at Mobile as plaintiff should be able from time to time to procure from officers of government permits for the use of cars, for so only could cars be had, and should furnish shipping instructions. Thus the case is brought within the reason of the well-established rule of law:
"That in a contract for the sale and delivery of goods, 'free on board' vessel, the seller is under no obligation to act, until the buyer names the ship to which the delivery is to be made; for until he knows that the seller could not put the goods on board." Vogt v. Schienebeck, 2 Ann. Cas. note on page 818.
It is also clear that deliveries were to depend upon plaintiff's ability to get space on vessels to France, for which market plaintiff was buying staves — at that time a matter of no little difficulty and uncertainty — and that payments were to be made as staves were shipped. October 18 and 20, 1917, two cars were delivered and shipped by rail to plaintiff's consignment at New York. The testimony of plaintiff's witness Thomas is that after the shipments stated above —
"owing to the difficulty in procuring railroad cars for shipments, the steamship people would not give space. It was impossible to procure space, although the plaintiff was constantly on the market for space and made every effort to procure space to move the staves involved in this suit, as well as a large quantity of other staves it had sold to its French customers under the same contract by which it had sold the staves involved in this suit. The plaintiff could get no space for the shipment of these staves, and this condition existed from October, 1917, through 1918 and a part of 1919."
However, on August 12, 1918, plaintiff informed defendant by wire that it had prospects of shipping a small cargo from Mobile, and wanted to know whether defendant was prepared to deliver the rest of the staves contracted for; but defendant made no answer. And thus the matter rested until June 3, 1919, when plaintiff wrote defendant, commenting on the latter's failure to answer its last letter, and said:
"We are not able and have never been able since the purchase from you of these staves to ship them and we let the matter drop until we should have positive freight engagements by which to lift the staves. We have now secured this opportunity and wish to know what steps you can take towards filling your contract."
This also went unanswered. And on September 5, 1919, plaintiff again wrote, demanding somewhat more peremptorily that defendant fill its contract by the delivery of the remaining 38,000 staves. This was followed October 27, 1920, by another of like tenor, which defendant answered November 2, 1920, denying, in effect, any obligation to make further deliveries.
The trial court instructed the jury that this letter of November 2, 1920, constituted a breach of the contract, and directed that plaintiff's damages be assessed at the difference, if any, between the contract price of the staves and their market price on that date; but, there being evidence that there was no market for staves during November, nor any after July, 1920, the jury awarded nominal damages. Assuming the jury's acceptance of the evidence just stated, their verdict filled the measure of justice. *Page 189
"If the goods have no value whatever, the buyer can never be entitled to more than nominal damages; and as the burden is on the buyer to prove his damages, if he fails to prove the market price, or some other appropriate measure of damages, his recovery is only nominal." 3 Williston on Contracts, § 1384.
The complaint now is that the court erroneously fixed the date of breach. It is insisted that the contract between the parties was breached when plaintiff, June 3, 1919, stated, without response from defendant, its wish to know what defendant could do towards filling his contract, or, at worst, that there was a breach when, September 5, 1919, plaintiff demanded performance with like result.
There was no sale of specific staves. Defendant's engagement was merely to deliver a certain number of staves of a certain quality as defendant should make arrangements for their shipment. During the interval between October 20, 1917, and August 12, 1918, plaintiff made no suggestion that the contract was still pending, nor any demand for performance, until June 3, 1919. At that time the market price of claret staves was $400 to $450 the thousand. Whether by reason of this failure to assert the continued life of the contract, notwithstanding the state of abeyance — of suspended animation — into which it had fallen, there was such laches, such unreasonable delay on the part of plaintiff to demand performance, as constituted a waiver or abandonment of its right under the contract, was probably a question for the jury; but, assuming, in accordance with plaintiff's contention, as the trial court did assume, that on June 3, 1919, there was a subsisting obligation on the part of defendant, we are of opinion that the court correctly instructed the jury that the breach occurred when, November 2, 1920, defendant denied all such obligation; this for the reason that, in the absence of repudiation by defendant, plaintiff could only put defendant in default by making all necessary arrangements and giving necessary instructions for transportation. In the absence of such arrangements and instructions defendant would have been unable to make delivery according to the true intent and meaning of the contract — could not have shipped the staves, even if able to procure cars, without assuming a risk his contract did not require him to assume. Hughes v. Knott, 138 N.C. 105, 50 S.E. 586, 3 Ann. Cas. 903; Sterne v. Bay State Milling Co., 178 N.C. 479,101 S.E. 21. If it had been necessary under the contract that the time of delivery only be fixed by plaintiff's demand, any demand which would have fairly put defendant on notice that performance was expected would have been sufficient to put defendant in default after the lapse of a reasonable time thereafter without delivery, and so to fasten upon him the consequences of a breach. But the fixing of the time of delivery was not the only thing plaintiff had to do in order to put defendant under the duty to deliver; it was necessary that plaintiff get a permit for cars and give shipping instructions. This plaintiff did not do. We are therefore at the conclusion that the court committed no error, and that the judgment should be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.