(54 South. 582.)

No. 18,265.

#### C. W. ROBINSON LUMBER CO. v. W. O. & C. G. BURTON et al.

(June 20, 1910.

On the Merits, Oct. 31, 1910.

On Rehearing, March 13, 1911.)

*(Syllabus by the Court.)*

1. Appeal and Error (§ 795*) — Motion to Dismiss — Necessity for Briefs.

There are no briefs attached to the transcript of appeal of the main denial, and none-filed in support of the motion to dismiss. It is the duty of parties filing a motion of this character to bring by brief to the knowledge of the court the pleadings in the case, the issues. *121raised and submitted for decision, the relations of the parties to each other and to the issues, and all other facts necessary for the court to pass intelligently upon the motion. Pressed as this court is with work, it cannot be expected that it should have to examine the record and perform duties which properly fall to counsel.

[Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 3142-3145; Dec. Dig. § 795.*)

2. Sales (§ 418*) — Breach oe Contract as to Delivery — Purchase oe Goods Elsewhere — Measure oe Damages.

Where there Was delay in the delivery of lumber sold to be used in the construction of a warehouse, it was the purchaser’s duty to obtain the same kind of lumber elsewhere as expeditiously and cheaply as he reasonably could, if that was practicable; and the vendor would be responsible for the excess of the costs of the lumber so obtained over the price at which he contracted to furnish such material, and also for such reasonable expenses as were incurred in so doing.

[Ed. Note. — For other cases, see Sales, Cent.' Dig. §§ 1174-1201; Dec. Dig. § 418.*]

3. Sales (§ 418*) — Breach of Contract as to Delivery — Purchase oe Goods Elsewhere — Measure oe Damages.

Where the contractors made no efforts to obtain the lumber elsewhere, but rushed the construction of the building and used tempo-, rary substitutes for girders and joists, the additional expense of such irregular construction cannot be recovered as damages.

[Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]

On Rehearing.

4. Sales (§ 418*) — Breach oe Contract-Measure oe Damages.

Where, as in this case, there is no charge of fraud or bad faith, the general rule is that the damages which may be recovered for the inexccution of a contract are those which are contemplated, or which may reasonably be supposed to have entered into the contemplation of the parties, when the contract was made; and, in the case of a sale of personal property, in the absence of evidence showing that other and special damages were contemplated, those which are presumed to have entered into the contemplation of the parties are represented by the difference between the contract price of the thing sold and the market value at the time and place at which it was to have been delivered, plus the expense incurred, on account of the contract, by the party not in default, and in some cases interest on the-amount awarded. When, therefore, a claim for damages arising from the inexecution of such a contract is pitched upon some other basis, and there is no evidence to support it upon the basis stated, there can be no recovery, nor will the case be remanded, since the trouble lies, not only with the lack of proof, but with the claim itself, as asserted in the petition.

[Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 1174-1201; Dec. Dig. § 418.*]

*(Additional Syllabus by Editorial Staff.)*

5. Mechanics’ Liens (§ 229*) — Building Contracts — Contractor’s Bond — Liability oe Owner to Materialmen.

Where the owners of a building to be constructed procured from the contractors a bond in favor of the owners alone, and did not secure the furnishers of material thereby, such owners are personally responsible to such materialmen for the amount due them for material furnished under the express provisions of Act 180 of 1894.

[Ed. Note. — For other cases, see Mechanics’ Liens, Dec. Dig. § 229.*]

Appeal from Civil District Court, Parish of Orleans; Thomas C. W. Ellis, Judge.

Action by the C. W. Robinson Lumber Company against W. O. & C. G. Burton, Albert Maclcie, and the Albert Maekie Grocery Company. From the judgment, defendants Maekie and the Grocery Company appeal; plaintiff answering the appeal, and praying for a personal judgment.

Modified and affirmed.

McCloskey & Benedict, for appellants. T. M. & J. D. Miller, for appellee. P. M. Milner, for defendants W. O. & C. G. Burton.

On Motion to Dismiss Appeal.

NICHOLLS, J.

The plaintiff and appellee moves the court to dismiss the appeal of Albert Maekie and the Albert Maekie Grocery Company on the ground that the appeal bond furnished by appellants is insufficient to support their appeal; the same being in the penalty of only $250, whereas the judgment appealed from was for $2,065.

2. The said appellees (.appellants?) could not validly join in one motion and one bond of appeal. .

There are no briefs attached to the transcript of appeal on the main demand, and appellees have filed none in support of their motion to dismiss. The motion utterly fails to give the court any information as to the *123action which they have brought, the issues therein involved, or the relations of the different parties in connection with the issues raised and decided.

Pressed as the court is with work, it cannot be expected in order to rule intelligently upon this motion to examine the whole record with which counsel themselves are already familiar. It is their duty to bring on a motion of this character to the knowledge of the court the facts upon which it is called to act. As presently advised, we see no ground for dismissing the appeal.

The motion to dismiss is overruled, and the appeal is maintained.

On the Merits.

LAND, J.

Plaintiff sued *W.*O. and O. G. Burton for a balance of $2,065.32, due under a contract for the sale and delivery of lumber to be used in the construction of a warehouse on land belonging to the codefendant Albert Mackie, who held the title to the property for the Albert Mackie Grocery Company, Limited. Albert Mackie was sued on the ground that he as owner had failed to require of his said contractors a bond in favor of the furnisher of materials as required by law. The said’ company intervened and called the Fidelity & Deposit Company of Maryland in warranty.

W. O. and C. G. Burton filed an answer, in which they specially denied the delivery of the last three car loads of lumber charged in the account, and averred that plaintiff failed to complete the delivery of the lumber by February 15, 1905, pursuant to contract, and claimed in reconvention the sum of $4,603.32 damages by reason of the delay in the delivery of the material.

The respondents further averred that during the months of April and May, 1905, they repeatedly put plaintiff in default, “and notified it that they would hold it liable for all damages suffered by reason of the delay in delivery of the materials, the extra cost of handling same, and damages and expenses to which respondents were put.” The respondents further averred that, instead of reimbursing them the amount of their losses as demanded, the plaintiff put a lien upon the building, and compelled respondents to go to the further expense of $50 for securing a bond to get payment on the contract.

The principal items of alleged damage are-based on the delay of the plaintiff in the delivery of girders and joists. It is alleged in the answer that the defendant contractors-proceeded to erect the building without such girders using temporary substitutes which had to be removed and replaced with proper material. The respondents also claim as damages for delay the salaries of all their employés and superintendent for two months, aggregating $2,250, and other items that need not be recapitulated.

On the trial below the correctness of the account sued on was proven beyond question, and there was judgment in favor of the plaintiff as prayed for against W. O. and C. G. Burton with recognition of their lien on the building. Plaintiff’s demand against the owners and the reeonventional demand of W. O. and O. G. Burton were dismissed.

All the defendants have appealed, and plaintiff has answered the appeals of the owners, praying for a personal judgment against them.

On December 17, 1904, plaintiff offered to sell and deliver to W. O. and O. G. Burton a bill of long leaf pine lumber at an average price of $16.72 per M feet, shipment to-commence about January 1st, and to be completed about February 15, 1905. This offer was accepted by W. O. and C. G. Burton. Shipments commenced on January 10, and terminated on May 31, 1905. The payments on account extended from March 8 to May 26, 1905.

*125On March 23, 1905, W. O. and C. G. Burton wrote the plaintiff that the delivery of the lumber was past due, and that the building was being delayed on account of the same, and that under the circumstances they would be obliged to hold the plaintiff responsible for this delay.

On March 27th, the defendants, again complained of the delay, and wrote that they were using roof timbers for temporary joists, necessitating the expense of rebuilding and placing and recorking the joists in holes left in the wall in order to carry on the brickwork. The letter concludes:

“We notify you that you are held for liquidated damages.”

The defendants continued to complain of delay and to urge the delivery of the lumber as per contract.

On April 5, 1905, they wrote:

> “We would be more than glad to pay you if your lumber was delivered, but we decline to make further payments until we receive more lumber.”

On April 15, 1905, the defendants wrote:

> “This is to notify you that, if the balance of said lumber is not delivered in ten (10) days, we propose to go into the open market and purchase same and charge said lumber to your account.”

On April 19, 1910, the defendants wrote that they could not accept certain lumber on account of the delay in shipment, as they had been obliged to purchase the material elsewhere. It appears that the architect condemned all the flooring delivered, but that this matter was satisfactorily adjusted between the parties.

There was -unquestionably delay in the delivery 'of some of the lumber, and damages may be recovered by the vendee from the vendor for delay in the delivery of the things sold according to the circumstances of the case. 3 Sutherlánd on Damages (3d Ed.) § G64. But it is the duty of the purchaser to obtain a substitute for the article sold whenever it is practicable to do so. Id.

> “Where there was delay in delivering logs to-a sawmill, the operations of which were thereby interrupted, these rules were announced: It was the vendee’s duty to obtain logs elsewhere-as expeditiously and cheaply as he reasonably could, if that was practicable. The vendor-would be responsible for the excess of the costs-of the logs so obtained over the price at which he contracted to furnish them, and also for-such reasonable expenses as were incurred in-so doing.” Id.

In George W. Cable et al. v. Leeds *&*Co., 6 La. Ann. 293, the defendants were sued for damages for failing to supply a suitable-crank for a steamboat, and the court held that no damages could be recovered except those caused by the detention of the boat at the time that it was actually necessary to-have obtained a new crank.

If, as averred in the answer, the limit for delivery expired on February 15, 1905, the contractors should have proceeded forthwith to obtain the material elsewhere, if they desired to put themselves in a position to claim damages for delay.

Girders and joists were furnished by the-plaintiff, but -one-half or more were rejected by the architect on account of quality. The defendant contractors made no effort to-procure such lumber elsewhere, but rushed the construction of the building, using temporary substitutes for girders and joists, which later had to“ be removed for the insertion of proper lumber furnished by the plaintiff.

The architect testified that this was a. very irregular method of construction. Surely the additional cost of such extraordinary construction was not a direct consequence of' plaintiff’s failure to deliver proper lumber, nor can be said to have been within the reasonable contemplation of the parties at the time of the contract.

The bond furnished by the contractors was in favor of the owner alone, and for their-failure to secure the furnisher of materials, the defendant owners are personally respem*127sible under the express provisions of the statute. Act No. 180 of 1894.

It is therefore ordered that the judgment below be amended by inserting after the words “W. O. & O. G. Burton” in the third line of the decree the words, “Albert Mackie and the Albert Mackie Grocery Company, Limited, in solido”; and it is further ordered that, as thus amended, said judgment be and is hereby affirmed, and that the defendants pay the costs of appeal.

On Rehearing.

MONROE, J.

The petition for rehearing alleges, among other things:

> “That this court goes no further (in the opinion handed down) than to say that it was the duty of the defendant to have bought this material in open market if it was practicable. But there is no evidence in the record to show that this was practicable, and an examination of the contract and detailed bill of lumber * * * will show that all of this lumber, except the flooring, was very heavy material.

> “Petitioners aver that if as a matter of law they are not entitled to any excess of cost in the purchase of material, because they have purchased no lumber, yet under the very decree of the court petitioners must be entitled to the loss and expenses sustained during the time or delay necessary to get this material, and petitioners aver that it is reasonable, right, and proper to assume that defendants would have been delayed just as long in getting this material from other parties as the plaintiff delayed defendants, and therefore the expense while waiting on the delivery of the lumber proven by the record should be allowed; * * * _ that this expense was sustained in the continued employment of the engineer, brick foreman, carpenter, timekeeper, and watchman, making an item of $1,250, actually proven. Wherefore, petitioners pray that your honors will remand the case for the purpose of establishing whether or not it was practicable for the plaintiff to go into the open market and buy the material which the plaintiff should have furnished, or, in the alternative, that a rehearing be granted, and that the judgment of the lower court be amended by at least giving judgment for their actual expenses in the sum of $1,250, being the salaries of engineer, carpenter, brick foreman, timekeeper, and watchman during the delay waiting on this lumber.”

Where, as in this case, there is no charge of fraud or bad faith, the general rule is that the damages which may be recovered for the inexecution of a contract are those which were contemplated, or which may reasonably be supposed to have entered into the contemplation of the parties, when the contract was made; and in the case of a sale of personal property, in the absence of evidence showing that other and special damages wer§ contemplated, those which are presumed to have entered into the contemplation of the parties are represented by the difference between the contract price of the thing sold and the market value at the time and place at which it was to have been delivered, plus the expense incurred on account of the contract by the party not in default, and in some cases interest on the amount awarded. Vance v. Tourné & Beckwith, 13 La. 225; Arrowsmith v. Gordon, 3 La. Ann. 105; Porter v. Barrow, 3 La. Ann. 140; Marchesseau v. Chaffee et al., 4 La. Ann. 24; Gauthier v. Green, 14 La. Ann. 788; Pratt v. Craft, 20 La. Ann. 292; Camors *& Co. v.*Madden, 36 La. Ann. 426; Loeb v. Homer Compress & Mfg. Co., 111 La. 728, 35 South. 843; 35 Cyc. pp. 633, 634.

In the case now under consideration, the thing sold was lumber, of certain dimensions, and, as there are many sawmills in Louisiana and the surrounding country and many dealers in lumber, it must be presumed to have been within the contemplation of' the parties to the contract sued on that in the event of plaintiff’s default or delay in making deliveries, defendants would go into the market and buy such lumber as the contract called for, charging plaintiff with the difference between the price paid and that which had been agreed on, together with the extra expense, if any, to which they might thereby have been subjected, which presumption is confirmed by the statements contained in defendants’ letters to plaintiff, as follows:

> Letter of April 15, 1905:

> “ * * * And this is to notify you that, if the balance of said lumber is not delivered in ten days, we propose to go into the open mar*129Ret and purchase same and charge said lumber to your account.”

> Letter of April 19, 1905:

> “We have notified you verbally that we could not accept the ten pieces of 12x16x16 on account of the delay in shipping same. We were obliged to purchase this material elsewhere, so as not to delay the work. We have just received the freight notice showing the arrival of the above timber and hereby notify you that w*e will not unload it, and same is at your disposal.”

> Letter of May 19,1905:

> “We are daily suffering demurrage penalty for our failure to' complete the building. Please advise us, immediately, if you can furnish this flooring, according to your contract, and, within what time, otherwise, we shall be compelled to go in the open market and buy same. We again notify you that we will hold you liable for all damages and extra cost to us in buying this flooring as well as all damages and extra expense that you have occasioned us by your failure to deliver your material according to contract and within the stipulated time.”

Instead, however, of seeking to recover the damages which may reasonably be supposed to have entered into their (plaintiff’s) contemplation in the making of the contract, defendants are here suing to recover damages which resulted from the going on with the construction of a large, three-story brick warehouse, without the girders, joists, posts, or flooring, which plaintiff was slow in delivering, and from their undertaking to put those parts in after the walls had been erected, thereby necessitating the putting up and subsequent removal *d£*the most elaborate scaffolding in the interior of the building, the bracing of the walls probably from both sides, the doing of other temporary work, which had afterwards to be undone, and the doing of certain permanent work at an increased expense which would not have been incurred if they had gone into the market and bought the lumber needed to replace that which plaintiff failed to furnish at the proper time. It is neither alleged nor shown that such lumber could not have been obtained; on the contrary, from the letters which have been quoted, it would appear that it could have been obtained, and in one instance was obtained, but we are not informed what the cost was in that instance or what it would have been in any other instance, nor yet how long it took, or would have taken, defendants to supply the particular pieces mentioned in their letters, or any other pieces, that were not delivered by plaintiff according to contract.

Inasmuch, therefore, as defendants have not pitched their claim in reconvention upon a basis upon which they would be entitled to recover and have adduced no evidence to establish it on that basis, it is plain that there can-be no recovery. Nor. do we see our way to the remanding of the case, since the trouble lies, not only in the want of proof, but in the claim itself, as asserted in the petition in reconvention.

It is therefore ordered that the decree heretofore handed down be now reinstated and made the final judgment of this court.