Iron Trade Products Co. v. Wilkoff Co.
Iron Trade Products Co. v. Wilkoff Co.
Opinion of the Court
Opinion by
In July, 1919, plaintiff entered into a written contract with defendant for the purchase of twenty-six hundred tons of section relaying rails, to be delivered in New York harbor at times therein specified, for $41 a ton. Defendant failed to deliver any of the rails and plaintiff brought this suit, averring, by reason of such default, it hád been compelled to purchase the rails elsewhere (two thousand tons thereof at $49.20 per ton and six hundred tons at $49 per ton), also that the market or current price of the rails at the time and place of delivery was approximately $50 per ton, and claiming as damages the difference between what it had been compelled to pay and the contract price. Defendant filed an affidavit of defense and a supplement thereto, both of which the court below held insufficient and entered judgment for plaintiff; from which defendant brought this appeal.
In effect, the affidavit of defense avers the supply of such rails was very limited, there being only two places in the United States (cne in Georgia and one in West Virginia) where they could be obtained in quantities to fill the contract, and that, pending the time for delivery, defendant was negotiating for the required rails when plaintiff announced to the trade its urgent desire to purchase a similar quantity of like rails, and, in fact, bought eight hundred and eighty-seven tons and agreed to purchase a much larger quantity from the parties with whom defendant had been negotiating; further averring this conduct on behalf of plaintiff reduced the available supply of relaying rails and enhanced the price to an exorbitant-sum, rendering performance by defendant impossible. The affidavit, however, fails to aver knowledge on part of plaintiff that the supply of rails was
The affidavit “denies that there was any market or market price, or current price for such relaying rails,”
“In fact the plaintiff bought a quantity of such rails, to wit, eight hundred and eighty-seven tons, and at one time had contracted for the purchase of a much larger quantity thereof, from the same persons with whom the defendant had been negotiating for the same, and at higher prices than had been offered to the defendant by the same persons within the term of the said contract.
“And affiant, while denying as aforesaid that the plaintiff was compelled to purchase the said rails or any of them, avers that if the plaintiff was so compelled it was only as the result of plaintiff’s own interference with the defendant’s performance of the said contract; and avers that but for the said interference the defendant would have made full performance of its said contract.”
The above, and the admitted facts that plaintiff actually bought the twenty-six hundred tons and had previously resold the same, indicate a market value, and the specific averment thereof in the statement of claim is not sufficiently denied in the affidavit. An affidavit of defense must be considered as a whole, and therein a general denial is of no avail against an admission of the same fact. An affidavit that is contradictory or equivo
The supplemental affidavit avers that, when the contract in suit was made, plaintiff, to the knowledge of defendant, had resold the twenty-six hundred tons of rails at $42.25 per ton and, furthermore, that the purchaser at such resale released plaintiff from all claim for damages under the contract. In an action by a vendee for failure to deliver goods according to contract, the usual measure of damages is the difference between the contract price and the market value at the time and place of delivery: Seward v. Pa. Salt Mfg. Co., 266 Pa. 457, 461, and cases there cited; also Hauptman v. Pa. W. Home for Blind Men, 258 Pa. 427. This rule is stated in clause 3d of section 67 of the Sales Act of May 19, 1915, P. L. 543, 562, as follows, viz: “Where there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.”
However, where in such case the vendee procures the goods elsewhere, at less than the market value, his measure of damages is limited to the amount he expended therefor in excess of the contract price: Theiss v. Weiss, 166 Pa. 9, 19; Morris v. Supplee, 208 Pa. 253, 260. Defendant contends the rule of damages above stated does not apply here because of plaintiff’s contract for resale, and that in no event can plaintiff recover more than would have been its profits thereon. In support of which Trigg v. Clay, 88 Va. 330, is cited. That decision, however, is expressly based upon the absence of a market at which lumber, similar to that contracted for, could have been obtained. For that reason, the price at which plaintiff had resold the lumber was accepted as a satisfactory basis for ascertaining his damages. To like ef
The assignments of error are overruled and the judgment is affirmed.
Reference
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- Contracts — Sale—N^.performance—Difficulty of performance — ■ Limited quantity in market — Damages—Measure of damages— Sales Act of May 19,1915, P. L. 5h&, 562. ' 1. If a party, seeking to secure all tbe merchandise of a certain character which he could obtain, enters into a contract for a quantity of such goods, and subsequently makes performance of the contract by the seller more difficult by making other purchases which increase the scarcity of the available supply, his conduct, in the absence of any intent to embarrass or interfere with the seller, will furnish no excuse to the latter for refusal to perform the contract. Mere difficulty of performance will not excuse a breach of contract. 2. Where there is an available market in which to procure goods that were not delivered, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market price at the time and place for delivery, or, if no time was fixed, then at the time of the refusal to deliver, as provided by the Sales Act of May 19, 1915, P. L. 543, 562. 3. If the vendee procures the goods elsewhere, at less than the market value, his measure of damages is limited to the amount he expended therefor in excess of the contract price. 4. If, however, he resells the goods, the price, on the resale, is not to be taken as the basis for damages for the breach of delivery, unless made part of the contract. Practice, C. P. — Affidavit of defense — Contradictory or equivocal averments — Sale. 5. An affidavit of defense must be considered as a whole, and a general denial therein is of no avail. An affidavit that is contradictory or equivocal is insufficient. 6. In an action for failure to deliver goods under a contract of sale, an affidavit of defense is insufficient, which, on the question of damages, denies generally that there was any market or market price for such goods, but admits facts which show that there was a market price.