Contract, Performance and breach. Damages, Special, In recoupment. In an action of contract for the price of lumber sold and delivered the defendant claimed damages in recoupment by reason of the plaintiff's alleged failure to perform his contract in regard to the time of delivering the lumber. It appeared that the lumber was not shipped within the time agreed upon and that time was of the essence of the contract, but it also appeared that there was incorporated in the contract a provision that "all agreements are contingent upon strikes, accidents, delays of carriers and other delays beyond our control." It was found by an auditor, whose decision of facts was agreed to be final, that the delays were not occasioned by any act or omission of the plaintiff but that the delays in the various shipments were occasioned solely by carriers other than the carrier by which the final shipments by the plaintiff to the defendant were made and were due to causes beyond the control of the plaintiff. Held, that the plaintiff was entitled to recover the full price of the lumber delivered to and accepted by the defendant.
In an action to recover the price of lumber sold and delivered by the plaintiff to the defendant, in which special damages were claimed by the defendant in recoupment on the ground that by reason of delays in the deliveries of the shipments of the lumber a third person to whom the defendant had resold the lumber had suffered loss in consequence of the delay, where it appeared that the defendant had paid nothing to such third person on account of such alleged damages and that no action had been brought and no specific demand had been made upon the defendant for such damages, it was said that it was not necessary to base the denial of the defendant's right to recoupment on that ground; because it also appeared that under the express terms of the contract between the parties the plaintiff had proved an excuse for his failure to deliver the lumber within the agreed time.
De COURCY, J.
Under the rule issued to the auditor in this case his findings as to the facts are final. It is settled by the report that the lumber was not shipped within the period agreed upon, and that time was of the essence of the contract. The defendant's orders, however, were accepted on the express stipulation that "all agreements are contingent upon strikes, accidents, delays of carriers and other delays beyond our control," and this provision became embodied in the contract between the parties.
On the facts as found the delay was not occasioned by any act or omission of the plaintiff. The Durden-Coleman Lumber Company, in order to expedite deliveries, divided the defendant's orders among ten mills and used every effort to perform the contract in accordance with its terms. It appears that stormy weather rendered it impossible promptly to team the logs from the woods to some of the mills, and from other mills to the cars, and that there was delay in getting cars from the railroad companies to carry the lumber from the mills to the steamboat wharf at Savannah. But the auditor finds that the delays in the various shipments were occasioned solely by other carriers than the Ocean Steamship Company, and were due to causes beyond the control of the plaintiff. This makes out an excuse for the failure of the plaintiff to deliver the lumber within the agreed time. All of it, with the exception of twenty-one pieces for which allowance was made, was accepted by the defendant and was used by its vendee. The plaintiff is entitled to recover the amount found due by the auditor with interest from January 8, 1913, the date of demand for payment.
In view of the findings of fact the judge rightly refused to give the defendant's requests. Those numbered 7 and 8 relate to special damages, based on the claim that the Fred S. and A.D. Gore Corporation — to whom the defendant resold the lumber — suffered loss on account of the delays in shipment. Aside from the fact that the defendant has paid nothing to the Gore Corporation on account of such alleged damage, and that no action has been brought nor specific demand made upon it therefor (see Graham v. Middleby, 213 Mass. 437, 443), plainly such a claim must fall to the ground with the defendant's demand for general damages.
Exceptions overruled.