Willingham vs. Hooven, Owens, Rentschler & Company. rule, that this will never be done unless there ought to be WILLINGHAM vs. HOOVEN, OWENS, RENTSCHLER & COMPANY. 1. In a trover case, the plaintiffs have a right to elect whether they (a.) Neither a court of equity nor any other court has power to com- (b.) In consequence of a failure of the defendants to perform their contract, the complainant could have filed his bill for its recission and to recover damages for its breach, but he could not have repudiated the contract and at the same time retained possession of the property. When the vendors elected to abandon the contract and brought trover for the property, the vendee could only enjoin the action, so as to keep the property in statu quo, to answer whatever either party might recover on the final hearing of the suit. (c.) A money verdict for the plaintiffs in trover (defendants in the equity case) did not dispossess the other party of the property, but fixed a lien on it superior to all other outstanding liens against the holder. 74 233 125 412 Willingham vs. Hooven, Owens, Rentschler & Company. 3. Where the purchaser of a saw-mill and outfit sought to recover damages against the vendors thereof, resulting from the fact that the property received was inferior to that for which he bargained, losses sustained by the purchaser from abandoning planting operations in which he was engaged and going into the milling business, improvements made in order to carry on such business, alleged losses of profits by reason of having received an inferior outfit, additional purchases of timber, stock, vehicles, etc., to run a mill of the capacity of that bargained for, and personal services of himself and assistant while he was running the mill, or until its capacity had been fully tested, did not form elements of damage which could be recovered. Such damages were too remote and contingent, and evidence concerning them was properly rejected. (a.) The general rule is that in an action for the breach of a contract by delivering goods of a quality inferior to that contracted for, the proper measure of damages is the difference between the value of the goods of the quality contracted for at the time of the delivery, and the value of the goods then actually delivered, or their value as ascertained by a re-sale within a reasonable time. (b.) The charge was at least as favorable to the complainant as he could expect, and the defendants have not excepted. October 2, 1884. Trover. Verdict. Practice in Superior Court. Election. Specific Performance. Equity. Damages. Contracts. Vendor and Purchaser. Before Judge Bower. Dougherty Superior Court. April Term, 1884 Reported in the decision. D. H. POPE, for plaintiff in error. G. J. WRIGHT; C. B. WOOTEN; L. ARNHEIM, for defendants. HALL, Justice. Willingham filed a bill against Hooven, Owens, Rentschler & Company, in which he alleged that, on the 16th day of August, they contracted in writing to furnish him a steam saw-mill outfit, complete, all first-class, the boiler to be constructed to burn all the sawdust necessary to run Willingham vs. Hooven, Owens, Rentschler & Company. it, all to be of the very best workmanship and material, and to be equal to the capacity of 30,000 feet of inch lumber per day, with proper management. In case of default in workmanship or material, the defendants were to make the same good without extra charge, and should it not perform as well as customary for machinery of like size and proportions, Willingham was to give defendants reasonable notice and a chance to make it perform in a proper manner, the same to be ready for delivery at Hamilton, Ohio, on or before 22d of September, 1881; consideration to be $3,565, one-third due in sixty days from the erection of said machinery, one-third eight months after, and onethird twelve months, with eight per cent interest on all, for which Willingham was to give his negotiable notes, payable at Central Railroad Bank, with exchange, the title to remain in defendants until paid for. The above rig fully guaranteed to perform all the above specifications to the satisfaction of said Willingham. The mill and outfit failed to come to time, and Willingham went on to Ohio November 1, 1881, and defendants wrote the following, which Willingham then and there signed: "In consideration of the shipment to me of my engine and sawmill outfit, as per contract of August 16, 1881, I hereby agree, immediately on my return home, to duly execute my notes, negotiable, and payable to the order of Hooven, Owens, Rentschler & Company, and deposit them, subject to their order, with the Central Railroad Bank at Albany, Georgia, the same to be delivered to Hooven, Owens, Rentschler & Company, as soon as the saw-mill outfit is set up and works satisfactorily according to contract; the notes to hold the outfit as the property of Hooven, Owens, Rentschler & Company until all is paid; the said outfit to be shipped at once." That notes were then drawn by defendants, signed by complainant and deposited in pursuance of the contract; that complainant, having refused, for reasons satisfactory to himself, to pay for the outfit, the defendants, on the 8th of September, 1882, instituted their action of trover and bail against him for the recovery of the same; that Willingham vs. Hooven, Owens, Rentschler & Company. he gave the bail as required; that, on 1st of December, 1881, he received from defendants an outfit, which they shipped to comply with said contract; that he had little or no skill in the business, while defendants were experts. He wanted to enter into the manufacture of yellow pine lumber, and it cost but little more to cut 30,000 feet per day than 10,000 feet, and the profits would be proportionately larger; that he was especially careful to guard his interests in the contracts; that they assured him a 30,000 foot mill, inch lumber, should be furnished; in order to make himself safe, he contracted as set out; that, relying on defendants, he spent large sums of money and contracted large debts, to-wit, $10,000 or other large sum; that he warned defendants to be careful to comply with their contracts, and they assured him they would; that he hired skilled assistance, put said outfit in good and proper position, supplied it with all needful help and labor, good logs, and tested its full capacity, and it would not turn out over 7,000 to 8,000 feet inch lumber per day; that he at once notified defendants of its failure, and one of their members came down, and said he would make it comply with said contract, and cut 30,000 feet inch boards per day. After seeing the mill, he admitted it would not, and that he would go home and send the machinery to make it do so. Afterwards defendants wanted to sell said outfit to complainant at a greatly reduced price, but he demanded that the contract be complied with, and defendants declined to do so, saying it could not be done without loss to them. The boiler is not constructed so as to burn sawdust to run the mill, which would save the expense of removing said dust and furnishing wood, at the yearly expense of $500. To run a 30,000 foot mill would cost about $220 per day, and its proceeds would be worth about $365. A 5,000 foot mill would cost about $50 dollars per day, and its income would be about $62.50. So he avers he is injured and damaged in the sum of $20,000; that, although de Willingham vs. Hooven, Owens, Rentschler & Company. fendants reserved title in said property, by their failure to comply with their contract, they have injured and damaged him; that they have commenced their action of trover and bail to recover the same without accounting to him for said damage; all of which resulted from their fraudulent conduct. Prayer for injunction, and that a decree be entered requiring said defendants to specifically perform their contract, and account for all the damage resulting from their failure to do so; that, on failure of defendants to perform said contract, a round sum be decreed, and the present outfit be sold therefor. Such other relief as the facts of his case would warrant was prayed. Discovery was waived. Complainant amended his bill, alleging that at and before he commenced negotiations for the purchase of said mill, he was engaged in planting, was weil equipped with plantations, stock supplies, farming tools and implements necessary to carry on said business successfully, and he had made money therein. Lumber was commanding a good price, $16 per thousand, and he believed, with sawmill outfits at a reasonable price, there was more profit in lumber than in farming. Defendants were experts; he was not, and relied on them; told them fully where the mill was to go, and that it was to cut yellow pine; that he wanted a 30,000 feet inch boards per day mill; so told them, and they so contracted with him; that on the faith of said contract, he broke up his planting interest, leased the right to cut logs on 15,000 acres land at $125 per month; that he was skilled and successful in planting, and the defendants falsely, fraudulently and knowingly, and with a view to deceive and defraud him, made the contract aforesaid, and at the price therein stated, when, in truth and in fact, such a mill was worth from $12,000 to $15,000, which was well known to defendants and unknown to him; but for their false and fraudulent representations, he would not have given up his planting and gone into the lumber business, by means of which he is damaged |