Stubblefield v. Montgomery Ward Co. , 163 Or. 432 ( 1940 )

Petition for rehearing denied January 23, 1940 ON PETITION FOR REHEARING (98 P.2d 14) The petition for a rehearing expresses a belief that our decision leaves uncertain the rule we employed in this case, and that confusion will result if upon retrial a state of facts more favorable to the plaintiffs than that presented in the previous trial is developed. Of course, our decision concerned itself with the facts brought before us by the record. However, we cited, employed and quoted from § 331, Restatement of the Law, Contracts, wherein is given the rule for the measurement of damages when a contract is breached. We believe that the rule stated in that section will prove to be practicable in the measurement of damages under any facts developed upon a retrial. The cases which were cited in our previous decision illustrate in a practical way the application of that rule. The brief accompanying the petition for a rehearing cites as additional authorities: Long v. Chas. T. Abeles Co.,77 Ark. 150, 91 S.W. 29; Leifer Mfg. Co. v. Gross, 93 Ark. 277,124 S.W. 1039; Cochran v. People's Railway Co., 113 Mo. 359,21 S.W. 6; Christopher Simpson A.I. F. Co. v. Steininger Const.Co., 200 Mo. App. 33, 205 S.W. 278; and Vaughn v. Conran (Mo.App.), 20 S.W.2d 968. We have read carefully those five decisions but remain satisfied that the rule stated in the Restatement is correct, and do not believe that any of those decisions, with the possible exception of the first, is at variance with that rule. The mere fact that an occasional authority can be found at variance with a given rule constitutes no reason for discarding the latter. As Macaulay said, "A single breaker may recede but the tide is coming in."

After stating, "It is very evident from a reading of the opinion that the court was rather hurried in its decision and did not thoroughly study the testimony," the petitioners express a belief that we overlooked a document known as Plaintiffs' Exhibit 7, being a contract between Mr. Stubblefield and Wickstrom Womack which required the firm to supply Stubblefield with lumber. If our decision is subject to criticism, we cannot excuse ourselves by saying that we were hurried and failed to "thoroughly study the testimony." We studied the latter with care. Nor did we overlook the exhibit expressly mentioned by the plaintiffs. That contract recited a sale by Stubblefield to Wickstrom Womack of a small sawmill and a quantity of standing timber at the price mentioned in the contract and then contained the following provision:

"The parties of the second part also promise and agree to cut and properly prepare for the use of the party of the first part 350,000 feet of lumber in the spring of 1938 as early as practicable and to plane 100,000 feet of such lumber or such quantity as the party of the first part may require for use in the hotel building at Lehman Springs, in a good, proper and mechanical manner, said lumber to be paid for at the price arrived at by subtracting the cost of production from the retail price of other sawmills in said vicinity and dividing the difference between the said cost of production and the said retail price of other sawmill plants in the said vicinity and the price thus arrived at shall be the price that the said Fancho Stubblefield shall pay for said lumber. The remainder of said 350,000 feet to be cut and prepared for the party of the first part as he shall require it and it shall be piled in the yard at said sawmill; all flooring for use in said hotel building to be planed, tongued and grooved. Whatever grades of lumber the party of the first part may require for said hotel building at said Springs, he shall have the right to order and the parties of the second part promise and agree to deliver to him at the yard at the regular retail price of lumber to be cut for building material, said price to be credited upon the price of stumpage as ascertained by the scale at said mill yard. All other lumber required by the party of the first part shall be paid for at the customary prices paid at said mill."

It will be observed that this provision of the contract is not free from ambiguities. Moreover, when one applies the above method of calculation by subtracting from the prevailing market price the cost of production and then dividing the two to ascertain the price to be paid by Stubblefield, he is amazed at the result. We stated in our previous opinion that a dispute arose between Stubblefield and Wickstrom Womack concerning the price to be paid for the lumber. Our calculations made it easy for us to understand why the misunderstanding had developed. No lumber was delivered.

The plaintiffs roundly criticize that part of our decision which pointed out that they were not entitled to a measurement of damages based upon the rental value of the building as a fully furnished going hotel. It will be recalled that we stated that there was no evidence indicating that the plaintiffs possessed the money with which to install the furnishings. The brief, after having indulged in this criticism, states: "This, however, we believe to be quite immaterial, and we do not believe that under the circumstances of this case we were under the burden of proving that we had money with which to complete the hotel and furnish the same. It is well settled that money, like the staples of commerce, is, in contemplation of law, always in the market and procurable at the lawful rate of interest * * *. Therefore, in the instant case, without any proof whatsoever that Mr. Stubblefield had made arrangements for the loan of sufficient money with which to complete and furnish the hotel, it would be presumed that the money to do this very thing was available in the open market at the legal rate of interest." Of course, money is procurable, but it is available only to those who possess the necessary credit or collateral. There is no presumption concerning the credit of anyone. Borrowing power is a matter of proof. As stated in our previous decision, the plaintiffs' brief frankly admitted that they were "financially embarrassed." To be financially embarrassed is no disgrace, but it is not a substitute for credit.

Notwithstanding the two contentions of which we have just taken notice, we remain satisfied that the record contains no evidence that could justify the measurement of damages on the basis of a going concern.

The petition for a rehearing is denied.

RAND, C.J., and BELT and LUSK, JJ., concur.