1909.) [Ed. Note.-For other cases, see Damages, Cent. Dig. § 143; Dec. Dig. § 68.*] 2. DAMAGES (§ 18*)-ITEMS OF DAMAGE-CER TAINTY. Any damages sustained by the quitting of defendant's workmen because of his inability to pay them, caused by plaintiff's failure to pay money for lumber sold and delivered from time to time under a contract, were too remote and uncertain to be recovered. 3. ESTOPPEL (§ 90*)-EQUITABLE ESTOPPELGROUNDS-ACQUIESCENCE-ASSENT TO ACTS OF OTHER PARTY-CONTRACTS. FEDERAL LUMBER CO. v. REECE et al. | timber, at prices agreed on in the writing (Court of Appeals of Kentucky. March 11, for each grade. The contract stipulated that the lumber cut at the mill was to be estimat1. DAMAGES (§ 68*) - MEASURE BREACH OF ed as to quantity each month, and then apCONTRACT CONTRACT FOR PAYMENT OF pellant was to advance upon it $11 a 1,000 MONEY. The measure of damages for failure to pay feet. It was then to be inspected according money due under a contract is interest thereon to the standard of the National Lumber Asat the rate of 6 per cent. until paid. sociation Rules, and, as it was measured, paid for according to the agreed prices for haul the lumber from their mill to the railthe respective grades. Appellees were to road at Hellier, in Pike county, and put it on board the cars. Three estimates were made, and there was advanced to appellees $2,714.22. The contract was made in December, 1906. Appellees were to haul and deliver the [Ed. Note. For other cases, see Damages, lumber on the cars as soon as it was inDec. Dig. § 18.*] Ispected and the roads were fit to haul it over. The mill was about 10 miles from the railroad. There was considerable delay in getting out the lumber. In fact, appellees did not deliver any of it. Appellant became impatient at the delay, and, the prices of lumber being on the decline, it arranged with appellees to haul the lumber itself at $10.40 a 1,000 for the oak stuff, and $7.40 a 1,000 for poplars. It began the hauling in June or July, and got out 179,172 feet, which according to the inspection and measurements came to $3,108.34. Such disagreements had arisen between the parties that appellees refused to let appellant have any more lumber, whereupon appellant filed this suit against appellees to recover the difference between the sum advanced and paid on hauling, $4,505.45, and the value of the lumber received, $3,108.34, as well as for $1,000 damages alleged to have been sustained by the breach of the contract by appellees' fail Where defendant sold plaintiff lumber to be measured according to standard lumber rules, and the parties disagreed as to the classification of some of the lumber, defendant, by assenting to plaintiff's contention as to the disputed classification and permitting the lumber to be taken away so that it was impossible to afterwards determine how it should be graded, waived his contention, and was estopped from denying plaintiff's classification. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 242-256; Dec. Dig. § 90.*] 4. SALES (8 344*)-ACCEPTANCE-RECOVERY OF VALUE. Where lumber was sold to be measured according to the standard lumber rules, but the parties disagreed as to the classification of certain lumber which they laid aside for further consideration, the seller could recover the value of such lumber afterward hauled away by the buyer. [Ed. Note.-For other cases, see Sales, Dec. Dig. 344.*] 5. EVIDENCE (8 78*) - PRESUMPTIONS - SUP-ure to deliver the lumber as soon as they PRESSION OF EVIDENCE. Where the parties disagreed as to the classification of lumber sold for measurement according to certain rules, and some of the lumber, the grade of which was disputed, was laid aside for further consideration, if the buyer afterwards hauled that lumber away without the seller's consent, the jury would be warranted in resolving any doubt as to its grade against the buyer in an action for breach of contract. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 98, 100; Dec. Dig. § 78.*] Appeal from Circuit Court, Pike County. "Not to be officially reported." Action by the Federal Lumber Company against William Reece and others, in which defendants counterclaimed for damages for breach of contract. From a judgment for defendants on the counterclaim plaintiff appeals. Reversed and remanded for new trial. F. W. Stowers and E. D. Stephenson, for appellant. Roscoe Vanover, for appellees. O'REAR, J. Appellees contracted to sell appellant the output of their sawmill in Pike county, which graded shipping culls and better, of certain dimensions and kinds of could and should have done. In the answer of appellees was presented a counterclaim for damages, in this: it was alleged that appellant had failed to pay installments on the lumber as they became due, in consequence of which appellees were unable to pay their laborers, and the laborers abandoned them, to their damages in $300; again, that appellant had wrongly graded the lumber, placing higher grades in the lower, thus reducing the prices at which it was credited to appellees, to their damage in the sum of $1,240; again, that appellant had ordered appellee to cut certain of the oak logs into two-inch boards, but had subsequently refused to take any of them, leaving on their hands some 50,000 feet of this lumber which they were unable to sell, and which was a loss to them. Damages in the sum of $950 were asked on this score. The first claim of damages set up in the counterclaim has no existence in law. A failure to pay money on a contract when it is due involves damages, it is true. But the measure is 6 per cent. per annum interest on the payment past due till paid. Sedgwick | enced inspector whose fairness is conceded on Damages, §§ 130, 179; Mason v. Biddle, 6 J. J. Marsh. 30; Stockton v. Scobie, 1 J. J. Marsh. 6. The other damages, the quitting of the workmen, and the like is regarded in law as too remote and uncertain. by appellees, testified that their grading was substantially the same, and that Edwards' grading was according to the rules of the National Hardwood Lumber Association. Paddock, another inspector, corroborated them. As to the third item of damages presented in the counterclaim, the instruction of the court allowed the jury to find the value of all oak lumber sawed into two-inch stuff by order of appellant, and not taken up by it, if a loss to the appellees. The contract, while calling for certain dimensions, provided that appellant had the right to direct any different dimension to be made, if it would not entail a loss in quantity on the appellees, having due regard to the character of the loss. The evidence is that orders were given to saw the two-inch oak boards; but there was not a change of the contract in any particular. It must have graded according to the rules of the National Hardwood Lumber Association either as shipping culls, common, or 1 or 2. The weight of the evidence is that it did not come up to any of these grades. all that did was taken by appellant and accounted for. While there was no objection to the instructions, we would not and do not reverse for the errors in them. But the verdict of the jury, wiping out some $1,300, admitted owing appellant on account of the hauling and advances in excess of lumber actually received, and their finding for appellees $262.85 over against appellant is palpably against the weight of the evidence. Appellees say the reason they did not insist on laying out the planks not agreed on in inspection was because those that were so laid out disappeared; the impression being made that appellant's teamsters loaded them on their wagons and hauled them off with the other lumber. For any planks of that kind taken, if taken by appellant, appellees should recover their value; and, if appellant took them under circumstances named, the jury would be warranted in resolving any doubt as to their grade against appellant. But as to the lumber allowed to be taken by appellant under its contract, we think the matter is closed by the law of estoppel. Appellees' conduct was equivalent to an assent that the inspection was accepted. Had they persisted in their objection, appellant could not have been misled into believ ing the inspection was acquiesced in. As to the inspection of the lumber, there was evidence introduced to the effect that one Edwards, an inspector of some 15 years' experience, graded and measured much of the lumber, perhaps one-half of it, and that he and appellees had frequent controversies as to how certain boards should be graded, whether they were to be classed as 1's, 2's, commons, or culls. Generally it would end up by Edwards having his way about it; but as many as 50 of these boards were laid to one side for future adjustment. The other two inspectors seem to have had no particular disagreements with appellees. It was proved that Edwards on one occasion admitted that he and one of the other inspectors graded differently, and that there was as much as 40 per cent. difference in the result of their work. The National Hardwood Lumber Association had promulgated a book of rules by which hard wood lumber is graded. Appellees had one of these books, and professed to be more or less acquainted with its rules. It must be true that, notwithstanding a familiarity with the rules of grading, any two men, equally honest and fair, might well disagree upon the grade of a particular board, and in grading some 200,000 feet of lumber there might be a number of such disagreements. For after all, it is largely a matter of judgment as to whether a particular board would fall within one grade or another. If the parties disagreed, the lumber not agreed upon should have been laid aside. But appellees yielded in every instance save the 50 boards mentioned. This we think was an agreement, being a waiver by appellees of their contention to the contrary. After the lumber passed into the general stock and was allowed to be shipped away, there was no way, even approximately, of knowing which grade it really belonged to, or what the quantity was. No record of it was kept. The reason for fixing the standard as was done in the original agreement was to have something definite to go by. It had to be left at last to somebody's judgment. If the parties failed to agree as between themselves before the lumber was surrendered, it should have been passed upon by some other person mutually selected, or left altogether where its quantity and quality might be known. No witness for appellee testified that the lumber was in fact of a different grade from that designated by Edwards. No others offered by appellee professed to know, save Phillip Reese, and he could not say how much was wrongly graded, or that, in fact, anti-trust statute, it is necessary to prove that To show a "combination" in violation of the any was wrongly graded. On the other hand, the combination was entered into for the pur Edwards and Dobson, the latter an experi-pose of increasing the price of an article above For the error indicated, the judgment is reversed and cause remanded for a new trial. STAHR v. HICKMAN GRAIN CO. (Court of Appeals of Kentucky. Feb. 26, 1909.) 1. MONOPOLIES (§ 17*)-ACTS CONSTITUTING— "COMBINATION. its real value or depreciating the price below | the Dahnke-Walker Milling Company, a corits real value. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.* For other definitions, see Words and Phrases, vol. 2, p. 1275.] poration organized under the laws of Tennessee, instituted this action to recover of the defendants, Stephen Stahr and Ed. Knox, the sum of $662.04 as damages for their fail 2. CORPORATIONS (§ 487*)-PARTNERSHIP-Ac-ure to comply with their contract to deliver TIONS. [Ed. Note.-For other cases, see Corporations, Dec. Dig. § 487.*] to plaintiffs 1,500 barrels of corn, at $2 per Where two corporations or a corporation barrel, on or before January 1, 1908. The and a natural person entered into a partner- original petition was based upon the idea of ship not in violation of the anti-trust statute, and did business jointly, they might recover on the profits which plaintiffs might have made obligations made to them in their firm name, ir- on the corn in question. By an amended perespective of their rights as between themselves tition they limited their damages to the difor of the power of corporations to enter into a partnership. ference between the contract price and the market price on January 1, 1908, and asked damages in the sum of $551.70. The jury returned a verdict in favor of plaintiffs for the sum of $441. From the judgment based A seller of goods to be delivered before a designated date, who had not declined to ac thereon, the defendant, Stephen Stahr, apcept the script offered by the buyer in pay-peals. ment for goods delivered, could not justify a refusal to carry out the contract on the ground that the payment for goods delivered was not made in legal tender. 3. SALES (§ 174*)—REFUSAL TO DELIVER-JUS TIFICATION. [Ed. Note. For other cases, see Sales, Dec. Dig. § 174.*] - 4. SALES ($ 418*) BREACH OF CONTRACT DAMAGES. - Where a seller who had the right to make delivery at any time up to a designated date failed to deliver, the market price on the designated date must be taken into consideration in determining the damages. [Ed. Note.-For other cases, see Sales, Cent. Dig. 1195; Dec. Dig. § 418.*] 5. SALES (§ 418*)-BREACH OF CONTRACTAPPLICATION OF BUYER. A buyer of goods who bases his claim to damages for the seller's failure to deliver on profits which he could have realized must minimize the damages by going into the market and purchasing as much of the goods as possible, but a buyer asking damages for the difference between the contract price and the market price need not attempt to buy other goods. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1188; Dec. Dig. § 418.*] The contract between the parties is in writing, and is as follows: "Hickman, Ky., August 27, 1907. I have this day sold to the Hickman Grain Company, of Hickman, Ky., 1,500 barrels of ear corn, to be of good merchantable condition, to be delivered at Hickman at their switch at West Hickman, by January 1, 1908, price to be $2.00 per barrel. [Signed] Ed. Knox, Steve Stahr." It is claimed by defendant that the court erred in sustaining a demurrer to certain paragraphs of his answer and counterclaim, and in the giving and refusing of certain instructions. One of defendant's defenses was that the alleged partnership between J. F. & S. L. Dodds Company and the Dahnke-Walker Milling Company was a combine, agreement, and understanding between the two corporations for the purpose of controlling, regulating, and fixing the price of corn at West Hickman in Fulton county, Ky. This de 6. SALES (§ 421*)—INSTRUCTIONS "SOUND"-fense, even if available by defendant, was not "GOOD." In an action for the breach of a contract calling for the delivery of "good merchantable corn, an instruction using the phrase "sound merchantable corn" is not erroneous, for the words "sound" and "good" mean substantially the same. [Ed. Note.-For other cases, see Sales, Dec. Dig. § 421.* For other definitions, see Words and Phrases, vol. 4, pp. 3105-3107; vol. 8, p. 6552.] Appeal from Circuit Court, Fulton County. "To be officially reported." properly pleaded. Under the latest ruling of Action by the Hickman Grain Company | uary 29, 1909) 115 S. W. 754. B. T. Davis and F. S. Moore, for appellant. CLAY, C. The plaintiff, Hickman Grain Company, a partnership composed of the J. F. & S. L. Dodds Company, a corporation organized under the laws of Mississippi, and The next defense relied upon was that the two corporations had no right to form the partnership in question; that at the time defendant entered into the contract he was ignorant of the fact that the Hickman Grain Company was composed of two corporations. Without entering into a discussion of the question when and under what circumstances corporations may enter into a joint enterprise and thus become partners therein, we deem it sufficient to say that, even if the two For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes In corporations composing the Hickman Grain | purchasing as much corn as possible. this case, however, plaintiffs abandoned their By another paragraph the defendant defended on the ground that the payment for the corn was made in script, which was not a legal tender, and that this excused him from complying with the contract. As it was not alleged in this paragraph that defendant declined to accept the script that was offered him in payment for the corn which he had delivered to plaintiffs up to the time the contract was abandoned and refused to be carried out by defendant, the trial court concluded that what was tendered was actually accepted by defendant, and therefore constituted no good reason for his failure to carry out the contract. The demurrer was therefore properly sustained. There was a further plea on the part of defendant that the plaintiffs themselves first violated the contract in question; indeed, this was the only real defense that the defendant had. The question whether or not the contract was violated by plaintiffs or defendant was properly submitted to the jury. In case the jury found for plaintiffs the court fixed the measure of damages as the difference between the market price of the corn on January 1, 1908, and the contract price of $2 per barrel. It is earnestly contended by counsel for defendant that the market price on December 15, 1907, the time when plaintiffs charge the contract was violated by defendant, was the correct date upon which to arrive at the market price. It is manifest, however, that as defendant had until January 1, 1908, to deliver the corn in question, and might have delivered it at any time up to that date, the market price on that date is to be taken into consideration in determining the amount of damages. 1 Sedgwick on Damages, p. 552; Miles v. Miller, etc., 12 Bush, 134. Counsel for defendant further insists that it was the duty of the court to submit to the jury the proposition whether or not other corn of equal kind could have been purchased by plaintiffs. Where the parties suing base their right to, and are entitled to, claim damages upon profits which they could have made, it would, of course, under such circumstances, be their duty to minimize the damages by going out into the market and Further complaint is made by counsel for defendant that in instruction No. 2 the court used "sound merchantable corn," instead of "good merchantable corn"; the latter phrase being the words of the contract. The meaning of the words "sound" and "good," in the connection in which they were used, is substantially the same. The jury could not have failed to understand what they were called upon to decide. They concluded that there was no merit in the defense interposed by defendant. A careful reading of the record leads us to the same conclusion. Perceiving no error in the record prejudicial to the substantial rights of the defendant, the judgment is affirmed. WARD v. COMMONWEALTH. March 10. 1. DUELING (§ 1*) — ELEMENTS - "DUEL”. "CHALLENGE TO DUEL." St. 1909. § 1269 (Russell's St. § 3190), imposes a punishment upon one challenging another to fight in single combat or otherwise, with a deadly weapon, and Const. § 239, prohibits one from holding office who shall directly or indirectly give a challenge to another to fight in single combat with a deadly weapon. Accused, while partially intoxicated, went up to another, and, drawing or partly drawing à gun, said: "God damn you, you started to draw a gun this morning, now, God damn you, shoot." Held that, since a duel was a combat with a deadly weapon fought under prescribed rules according to a precedent formal agreement without sudden heat or passion, accused's conduct did not amount to a challenge to a duel within the statute. [Ed. Note.-For other cases, see Dueling, Cent. Dig. § 1; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 3, p. 2258.] 2. DUELING (§ 5*) - PROSECUTION - TRIAL — JURY QUESTION. In a prosecution for challenging another to fight a duel, if there is any doubt as to whether accused intended to challenge another to fight a duel with deadly weapons, the question is ordinarily for the jury. [Ed. Note. For other cases, see Dueling, Cent. Dig. § 6; Dec. Dig. § 5.*] Appeal from Circuit Court, Garrard County. "To be officially reported." William H. Ward was convicted of challenging another to fight a duel, and he appeals. Reversed and remanded. W. I. Williams, for appellant. Jas. Breath- | acts, or any of them, be committed within itt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen., for the Commonwealth. BARKER, J. The appellant was indicted by the grand jury of Garrard county, charged with a violation of section 1269, Ky. St. (Russell's St. § 3190), commonly called the dueling statute. The indictment is as follows: "The grand jury of the county of Garrard in the name and by the authority of the commonwealth aforesaid accuse Will Ward of the offense of challenging another to fight in single combat with a deadly weapon, committed in manner and form as follows: The said Will Ward in the county and state aforesaid, on the first day of June, 1908, and before the finding of this indictment, did unlawfully, and willfully, challenge J. E. Robinson to fight in single combat with deadly weapons, to wit, pistols, by the following challenge in words, acts and form, to wit, then and there touching said Robinson on the shoulder with his hand and then and there stepping back and then and there drawing his pistol upon said Robinson and then and there unlawfully and maliciously saying to the said Robinson in words and substance: 'God damn you, you started to draw a gun this morning; now, God damn you, shoot.' Then and there meaning by the said words made and delivered as aforesaid a challenge to the said J. E. Robinson to fight with deadly weapons, to wit, pistols, with him the said Will Ward. Against the peace | and dignity of the commonwealth of Kentucky." A general demurrer was interposed to the indictment, which was overruled. A plea of not guilty was then entered, and a trial before a jury resulted in the appellant's being found guilty and his punishment fixed at a fine of $500 and imprisonment for six months in the county jail. Judgment was entered in accordance with the verdict, and of this the appellant is now complaining. The statute under which the appellant was indicted is as follows: "Whoever shall challenge in this state another to fight in single combat or otherwise, with any deadly weapon, in or out of this state, and the person who shall accept such challenge, shall each be imprisoned not less than six nor more than twelve months, and fined five hundred dollars; and, whoever shall knowingly carry or deliver any such challenge in this state, or consent in this state to be a second to either party, shall be fined one hundred dollars and imprisoned thirty days." Ky. St. 1269 (Russell's St. § 3190). Section 239 of the Constitution is as follows: "Any person who shall, after the adoption of this Constitution, either directly or indirectly, give, accept or knowingly carry a challenge to any person or persons to fight in single combat, with a citizen of this state, with a deadly weapon, either in or out of the state, shall be deprived of the right to hold any office of honor this state, the person or persons so committing them shall be further punished in such manner as the General Assembly may prescribe by law." The evidence for the commonwealth fully supports the charge in the indictment, and that for the defendant does not materially vary from that for the commonwealth. The appellant had had trouble with J. E. Robinson, and on the day the alleged offense with which he is charged was committed he was undoubtedly much under the influence of liquor. Seeing Robinson standing upon the street in Lancaster, he went up to him, and, either drawing or partially drawing his own pistol, said to him: "God damn you, you started to draw a gun this morning; now, God damn you, shoot." The question for adjudication is whether or not these facts, which are practically undisputed, constitute the offense of challenging another to fight a duel with deadly weapons within the meaning of the statute. We think not. It is not necessary for the purposes of this case to enter into an elaborate definition of the word "duel." For our purposes a duel is a combat with deadly weapons, fought according to the terms of a precedent agreement and under certain agreed or prescribed rules. A duel has none of the elements of sudden heat and passion. On the contrary, it is a combat, fought in cold blood, and under rules prescribing the utmost formality and decorum. One of the strongest arguments in favor of the dueling system was the fact that it tended to eliminate sudden and bloody encounters between angry combatants; that the code of necessity gave time for passion to subside and sober reason to return; that it gave opportunity for the intervention of friends, and it was said that this of itself operated to prevent bloodshed. Whether this argument was sound or unsound is immaterial now. We know from the history of the age just gone that the code duello, as practiced by our fathers, was a formal and decorous system, the requirements of which were carried out with the most punctilious formality. There was something highly romantic in the system, and there is no gainsaying that it held a high place in the estimation of the past age. It was to abolish this barbarous practice that the antidueling statute and the constitutional provisions were enacted. was not their purpose, nor, indeed, was it necessary, to enact such laws to prohibit the ordinary vulgar fights and brawls that spring up and are carried on under the influence of sudden heat and passion. Now, the charge in the indictment, and the proof for the commonwealth which supports it, exhibit none of the features of the formal duel with its superficial air of courtesy, to prohibit which the statute, under which the indictment was framed, was enacted. In the occurrence which took place between appellant and Rob It |