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(273 F.) powers of the city, and the limitation in the term of his office was immaterial. Under the authority vested in him by section 3 it was within his power to determine the kind and amount of coal he would buy and when it should be delivered; and the only limitation upon this power, in the absence of regulation by the mayor, was that he should exercise good faith in making the purchase. As he was authorized to buy the coal, and did not act in bad faith or in fraud of the rights of the city in making the contract, it was valid, and the defendant was at fault in refusing to accept the balance of the coal.

If the mayor, by establishing regulations, might have limited the discretion of the manager in the purchase of supplies to such as were necessary during his term of office, he did not do so, and, the contract having been made, the city cannot complain.

The plaintiff tried its case in the court below on the theory that the applicable rule of damages was the difference between what it cost to produce the coal at the mines and its selling or market price there, and, having introduced evidence with that theory of the law in mind, it requested the court to rule:

"That upon all the evidence the measure of damages (was] the difference between the cost of production and the selling price at the mines."

This request was refused, and its refusal is assigned as error. The court then stated that the rule of damages, if substantial damages were recoverable, was "the difference between the contract price and what the plaintiff could have sold the coal for to other persons” (meaning no doubt what it could have sold the coal for in the market at the time and place of delivery, Tufts v. Burnett, infra), but remarked that the evidence failed to show that the plaintiff had sustained any loss, saying:

"For aught that appears, the plaintiff may have resold to other persons all the coal contracted for and not taken by defendant at a price equal to that specified in the contract. If so, it suffered no loss.”

The court then found and ruled as follows: "On all the facts, I find and rule that the plaintiff, if entitled to recover, is entitled to recover only nominal damages."

This ruling is also assigned as error.

The plaintiff in presenting its case here has shifted its position from that taken in the court below. It no longer contends that the rule of damages is the difference between the cost of production and the sell. ing or market price at the mines, as contended in the court below, but that it is the difference between the contract price and the cost of production and delivery of the coal at Taunton, for the reason that the evidence discloses that the coal contracted for was of a special kind, controlled solely by the plaintiff. Roehm v. Horst, 178 U. S. 1, 21, 20 Sup. Ct. 780, 44 L. Ed. 953; Hinckley v. Pittsburg Steel Co., 121 U. S. 264, 275, 276, 7 Sup. Ct. 875, 30 L. Ed. 967; United States v. Purcell Envelope Co., 249 U. S. 313, 320, 39 Sup. Ct. 300, 63 L. Ed. 620.

In Roehm v. Horst the plaintiffs contracted to sell and deliver to the defendant in New York “prime Pacific Coast hops” in installments.

They purchased and shipped to the defendant the first installment, but the defendant refused to receive it. The plaintiffs had not purchased the balance of the hops required to fulfill the contract at the time of the defendant's refusal, but they could have made subcontracts at prices stated for subsequent shipments. Instead of purchasing or subcontracting for the balance of the hops, they immediately brought suit for breach of the contract. It was held that the damages the plaintiffs were entitled to recover were the difference between the contract price and the cost at the place of delivery. It was there said:

"If a vendor is to manufacture goods, and during the process of manufacture the contract is repudiated, he is not bound to complete the manufacture, and estimate his damages by the difference between the market price and the contract price, but the measure of damage is the difference between the contract price and the cost of performance. Hinckley v. Pittsburg Company, 121 U. S. 264. Even if in such cases the manufacturer actually obtains his profits before the time fixed for performance, and recovers on a basis of cost which might have been increased or diminished by subsequent events, the party who broke the contract before the time for complete performance cannot cumplain, for he took the risk involved in such anticipation. If the vendor has to buy, instead of to manufacture, the same principle prevails, and he may show what was the value of the contract by showing for what price he could have made subcontracts, just as the cost of manufacture in the case of a manufacturer may be shown. Although he may receive his money earlier in this way, and may gain, or lose, by the estimation of his damage in advance of the time for performance, still, as we have seen, he has the right to accept the situation tendered him, and the other party cannot complain."

In United States v. Purcell Envelope Co., supra, the plaintiff agreed to furnish the Post Office Department with "stamped envelopes and newspaper wrappers in such quantities as may be called for by the department during a period of four years." The government having refused to carry out the contract, the Envelope Company brought suit. The evidence showed what the total cost to the Envelope Company would have been to produce the envelopes and wrappers and deliver them to the department, and judgment was entered for the difference between that sum and the contract price. On appeal the Supreme Court affirmed the judgment, following the decision in Roehm v. Horst, supra.

In support of the ruling in the District Court the defendant relies upon the case of Tufts v. Bennett, 163 Mass. 398, 40 N. E. 172. In that case the plaintiff contracted to sell and deliver certain goods then on hand; to manufacture, sell, and deliver certain other goods; to sell and deliver additional goods that he was to purchase elsewhere; and to perform labor and furnish stock for renovating certain apparatus belonging to the defendant. The piaintiff had the goods ready for delivery at the time agreed upon, but the defendant refused to carry out the contract. Under these circumstances the court held that the measure of damages was “the difference between the market value of the goods at the time and place of delivery and the contract price"; but, as there was no evidence from which it could be found what that difference was, only nominal damages were allowed. In that case it will be noted that at the time the defendant broke the contract the plaintiff had the goods on hand ready for delivery, and that the only

(273 F.) damage which he could have sustained was the difference between the market value of the goods at the place of delivery and the contract price. If at the time the defendant broke the contract the plaintiff had not had on hand the goods called for by the contract, but was able to procure or manufacture them, his dainages would have been the difference between the cost of purchasing or producing the goods and the contract price; and it would not have been open to the defendant, who had broken the contract, to complain because he had not gone to the trouble of purchasing or manufacturing the goods.

[2] It does not appear in this case that the plaintiff had on hand Rockhill coal ready for delivery at the times when it would have been required to make deliveries, had the defendant not broken its contract, or, if it had it on hand, that the difference between the market price of such coal (at the time and place of delivery) and the contract price would have been less than the difference between the cost of producing and delivering it and the contract price. If it was less, and the defendant desired to avail itself of the lesser sum, the burden was upon it to show the fact.

"The burden of proving that the damages which have been sustained in such cases could have been prevented, unquestionably rests upon the party guilty of the breach of contract.” Hamilton v. McPherson, 28 N. Y. 72, 84 Am. Dec. 330; Sedgwick on Damages (9th Ed.) 8 227. .

(3-5) Such being the case, we regard the rule stated in the above decisions of the Supreme Court as applicable and that the plaintiff is entitled to recover the difference between the contract price and the cost of production and delivery of the coal at Taunton, provided there is evidence from which this difference can be found; otherwise, only nominal damages can be allowed. Is there evidence which will justify a finding for other than nominal damages? If the figures in the table put in evidence showing the number of tons of coal purchased by the defendant during the balance of the term of the contract and the figures representing the selling price and cost at the mine relate to other kinds of coal than that which the plaintiff contracted to sell and deliver (as they appear to), it is evident that there would be no evidence from which it could be found what the damage was that the plaintiff sustained, for it could not be ascertained from it what it would have cost the plaintiff to produce the balance of the coal and deliver it at the defendant's wharf. And we encounter the same difficulty, only in a lesser degree, if we regard the figures here in evidence as stating the selling or market price and cost at the mine of Rockhill coal; for, if we assume that the evidence shows what a ton of that coal cost the plaintiff at the mine, it does not show what it would cost to deliver it at the defendant's wharf. .

The mere showing of what the plaintiff's profit at the mine would have been has no tendency to prove what its damage was under the contract, for under the contract it was to deliver the coal at Taunton, and without evidence of the cost of delivery there, the damage which it suffered could not be determined. It may be said that, inasmuch as the plaintiff was entitled under the contract to receive $4.25 a ton for its

coal-if it can be assumed that the selling or market price at the mine for such coal was $1.78 a ton—the cost of transportation to Taunton would be $2.47, and that, if that were so, it could be determined what the plaintiff's damage was, for in such case the profit on the coal delivered at Taunton would be the same as the profit at the mine, without delivery. But the difficulty with this is that the difference between the cost of production and the selling or market price at the mine may not have been the same as the profit under the contract at Taunton, and whether it was the same or not could only be ascertained by evidence showing what the cost of transportation was. Such evidence is wanting. Its introduction was not necessary to sustain the rule of damages contended for in the court below, but is now, in view of the different rule here adopted; and, if we are right in our interpretation of the table put in evidence, the only judgment that can be entered is one for nominal damages.

If, however, we are mistaken as to the meaning of the figures and the statements contained in the table, and the statements and figures, when offered in evidence, were intended and understood to relate to "Rockhill coal” and not to "Berwind's standard” and “New River" coal, as stated in the table, and it was understood that the difference between the cost of production and the selling price at the mine was the same, and should be treated as the profit which the plaintiff would have made under the contract had it delivered the coal at Taunton, then the plaintiff would be entitled to recover the sum of $5,641.43, with interest from the date of the writ. In view of this situation, it is ordered:

The judgment of the District Court is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs in this court to the plaintiff in error.

ANDERSON, Circuit Judge. I am unable to concur with my Brethren's interpretation of the "table of profits" due the plaintiff on coal purchased by the defendant from other parties during the term of the contract. This table, construed in the light of the record and of the opinion of the court below, seems to me to show plainly that the stated difference between the "selling price at mines" (uniformly $1.78) and “cost at mines” (slightly varying around $1.20) was understood by the court below and by both counsel as meaning the difference between the gross cost of production plus transportation and the contract price at Taunton ($4.25), thus necessarily implying that the transportation cost was at the uniform price of $2.47 per ton-an implication entirely consistent with the known general course of business and with the fact that rail and water coal rates have for years been, in effect, made under orders of the Interstate Commerce Commission.

Nor can I concur in the statement that such implied evidence of transportation cost "was not necessary to sustain the rule of damages contended for in the court below, but is now, in view of the different rule here adopted.” The rule now adopted is, in my view, the rule

(273 F.) consistently contended for by plaintiff's counsel from beginning to end. I discover no shifting in his position.

But as under the mandate the case may, if necessary, stand in the District Court for further hearing on damages, I concur in the result.

FIRST NAT. BANK OF LITCHFIELD v. PIPE & CONTRACTORS'

SUPPLY CO.
(Circuit Court of Appeals, Second Circuit. April 20, 1921.)

No. 192. 1. Contracts 144-Governed by law where made and to be performed.

A contract of sale, which was made and to be performed in Connecticut, is to be interpreted in the light of the Uniform Sales Act, which has been

adopted in that state. 2. Sales 82 (3)-Contract held to be for cash on delivery by loading on

cars.

A contract which expressly required the balance of the purchase price to be paid when the property was loaded on the cars makes the payment of the price concurrent with delivery of the goods, within Gen. St. Conn.

1918, 88 4707, 4708. 3. Sales 300_Unpaid seller in possession has lien.

An unpaid seller of goods, who has not parted with possession, has a lien thereon, which authorizes him to resell, where the buyer has been in default in payment an unreasonable time, under the authority given by

Uniform Sales Act (Gen. St. Conn. 1918, $ 4726). 4. Appeal and error 1008 (2)-Findings by a court after jury is waived have effect of verdict.

In a case tried with a jury waived, the findings of fact by the court have the force and effect of a jury's verdict, and are conclusive upon a

court reviewing by writ of error, if based on any supporting evidence. 5. Trial 136 (3)- Meaning of plain words is question for court as "question

of law."

The meaning of plain words, in whatever form of writing contained, is for the court, and such matters of interpretation are commonly called "questions of law," though the meaning of language derived from exam

ination of dictionary is a "question of fact,” in one sense of that phrase. 6. Sales Com 182 (1) _“Reasonable time" is question for court, where the facts

are undisputed.

Whether the seller, before rescinding the contract and reselling the goods. gave the buyer a "reasonable time" within which to make payment -that is, such time as is necessary conveniently to do what the contract requires should be done is a question of law, where the facts are clearly established, or are undisputed or admitted.

(Ed. Note.-For other definitions, see Words and Phrases, First and

Second Series, Reasonable Time.) 7. Sales 174-Week held reasonable time to wait for payment of goods

loaded on cars.

Where a sales contract required payment of a balance of the price when the goods were loaded on cars, and the seller waited a week after notice to buyer that the goods were loaded, during which time communication between the parties was open, he had waited a reasonable time for buyer to make payment, and is not liable for breach of contract for thereafter selling goods to another and returning the advance payment to the first buyer, less the demurrage charges paid. for other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexas

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