Ross v. Tabor

This is an action to recover damages for the alleged breach of a contract. At the trial defendant’s motion for a nonsuit was granted and a judgment of nonsuit entered. From that judgment plaintiff appeals.

The evidence introduced by plaintiff discloses the following : By the terms of their contract, which was in writing and executed December 26, 1914, plaintiff agreed to furnish five hundred or more colonies of bees, which defendant agreed to care for in a workmanlike manner for a period of three years from the date of the agreement. Defendant further agreed to make from the bees thus to be furnished by plaintiff five hundred additional colonies' during the year 1915, one thousand additional colonies during the year 1916, and during the year 1917, a number sufficient to bring the total to two thousand colonies on the expiration of the three-year term of the contract. The contract further provided that plaintiff would furnish defendant with a tent-house, or other suitable dwelling place, free of rent; and that he likewise would furnish defendant with an automobile to be used by the latter in his work of caring for the different colonies of bees, which, it seems, were scattered over a number of locations covering a wide area in the Imperial Valley. Plaintiff also agreed to furnish defendant with an extracting outfit with which to extract the honey and wax. Defendant, among other things, agreed to keep all tools and “appliances” in good repair, at his own expense, and, during the term of the contract, not to engage in any occupation or vocation other than the care of plaintiff’s bees, without the latter’s consent. The contract provided that plaintiff and defendant should receive, rcspec

Immediately after the execution of the contract defendant took charge of the bees. Plaintiff furnished him with a house to live in and likewise with an automobile, as he had agreed. Indeed, plaintiff furnished defendant with everything that he had agreed to supply, excepting only the extracting outfit, which, it was testified, would not become necessary until the following June or July. Defendant’s counsel expressly stipulated that no question was raised on the failure to supply the extracting outfit prior to the time when its use would become necessary in June or Juiy of 1915.

In the latter part of March or the first of April, 1915, defendant moved into the house that plaintiff had provided for his use during the three-year term of the contract. On May 15th following, defendant left the house and moved off of plaintiff’s land into a house about an eighth of a mile away. On the same day, after using it for the removal of his personal effects, defendant took the automobile that plaintiff had supplied him for the care of the bees back to the house that plaintiff had supplied for his use and left it there.

Some time between the 25th and 30th of May, 1915, plaintiff called at the house that he had provided for defendant’s use and found it vacant. He also found the automobile standing in the yard without any oil or gasoline in it, exposed to the heat of the sun and the elements. Prom these circumstances plaintiff seems to have assumed that defendant had abandoned his contract. Thereupon plaintiff removed the automobile to his own home, some distance away, and took possession of the colonies of bees, thereafter earing for them himself.

Called as a witness by plaintiff under section 2055 of the Code of Civil Procedure, defendant testified that he quit taking care of the bees when plaintiff removed the machine to his own home; that when he found the machine was gone he walked to Brawley; that he was told that plaintiff had the machine; that he went to plaintiff’s house and saw the machine in his yard; that he did not see plaintiff and did not go on his premises at all; that he turned around

Plaintiff testified that some time between the 25th and 30th of May he went to the ranch where defendant had been living in the house that he had supplied for defendant’s use; that he went to the ranch intending to irrigate, and found the car standing beside the house, which was empty; that he took the car home; that the car was in good condition, but that there was neither gasoline nor lubricating oil in it; that he tried to start it but could not; that an automobile man who was with him supplied him with oil and gasoline, and that he then drove home with the car; that this occurred at about 8 or 9 o’clock in the morning; that he was at the ranch between an hour and two hours before he went away with the machine; that there was nothing in the house abandoned by defendant except a desk which the latter had made while he was living on plaintiff’s place in Brawley; that he never thereafter saw defendant until late in the fall, and that defendant did not do any work thereafter under the contract.

Defendant’s answer, in addition to denying a breach of the contract on his part, pleaded the statute of limitations, alleging that plaintiff’s cause of action is barred by subdivision 1 of section 337 of the Code of Civil Procedure, whereby it is provided that “an action upon any contract, obligation or liability founded upon an instrument in writing executed Within this state” must be commenced within four years after the accrual of the cause of action.

At the close of plaintiff’s evidence defendant moved for a nonsuit upon two grounds: 1. That the evidence did not show any breach of the contract on defendant’s part, but

[1] It may be that had the case, upon the close of appellant’s evidence, been submitted to the trial court for a decision on the merits, the evidence would have warranted a decision on the facts in respondent’s favor. In that case the court would have been called upon to decide questions of fact only, and would have been free to deduce from all the evidence any reasonable inferences, whether favorable or unfavorable to appellant, and regardless of whether opposing inferences might reasonably have been drawn from all the evidence. By moving for a nonsuit, however, respondent presented to the court a pure question of law. It is too well established to require the citation of authority that, on such a motion, not only must all the evidence in favor of the plaintiff be taken as true, and contradictory evidence, if any there be, be disregarded, but if the evidence will reasonably permit of two or more inferences, those inferences only which are most favorable to the plaintiff must be adopted by the court. If any authority were needed to support this well-established principle, reference might be made to Mitchell v. Brown, 18 Cal. App. 117 , [ 122 Pac. 426 ], and the long list of eases there cited. In view of the rule that thus requires the court, on a motion for a nonsuit, to resolve all reasonable inferences in favor of the plaintiff, we think that it was error to grant the motion and that the judgment, therefore, must be reversed.

[2] Coming now to a consideration of the evidence and the inferences favorable to appellant that are reasonably deducible therefrom: Unless the removal of the automobile by appellant warranted an abandonment of the contract by respondent, the' latter breached the contract. For it is admitted that at no time since appellant took the automobile in the latter part of May, 1915, has respondent done anything under his contract. He did not make from the five hundred colonies of bees furnished him by appellant an additional five hundred in 1915, or an additional one thousand in 1916, or, in 1917, a number sufficient to bring the total to two thousand colonies at the termination of the three years during which he was to work for appellant

If, in consequence of his own conduct immediately prior to the appellant’s retaking of the automobile for suitable protection, respondent believed that appellant was acting in the honest belief that he, respondent, had withdrawn from

[3] The written contract specifically imposes upon respondent the duty “to keep all tools and appliances in good repair at his own expense.” The word “appliances” is very broad and includes anything that is used as a means to an end. (Cook v. Big Muddy-Carterville Min. Co., 249 Ill. 41 , [ 94 N. E. 90 ].) The automobile furnished by appellant for respondent’s use was an “appliance,” within the meaning of the contract. It was a thing supplied by appellant to be used by respondent as a means of caring for the bees while traveling from location to location. It is not an unreasonable inference that, by leaving the automobile on the abandoned premises, exposed to the burning sun, respondent thereby failed to keep that “appliance” in good repair pursuant to the requirements of his agreement, thereby breaching his contract. Furthermore, by his contract respondent agreed “not to engage in any occupation or vocation other than the care of said bees without the consent of the said J. Edgar Ross.” The condition in which appellant found the abandoned premises that he had furnished for respondent to live in while caring for the bees might well justify the inference that respondent, if he had not moved away to take up some other occupation or vocation, was at least not caring for the bees “in a workmanlike manner and to the best of his ability,” as required by the terms of his contract, thus breaching the contract in a vital and important particular. In short, the inference that respondent was

[4] If respondent was the first to breach the contract, then he is liable in this action for damages even if, after such breach by him, appellant did take the automobile to his own home and assume the sole care of the bees. The fact that appellant removed the automobile from the premises that respondent had abandoned and placed it where it would not be subjected to the destructive effects of the sun’s rays, and the further fact that appellant cared for the bees that respondent seemingly had abandoned, instead of depriving appellant of all claim for damages, might justly be regarded as an effort on his part to reduce the damages sustained by him. Nor was it incumbent upon appellant to hunt up respondent and offer to return to him the automobile, or ask him to go back to the house that he had supplied for respondent’s use. The contract was a continuing executory contract, requiring of respondent continuous service over a three-year period. And if, as might be inferred from his conduct in leaving the house and the automobile, respondent had abandoned his contract, thereby breaching it, appellant was under no obligation to demand that respondent continue to perform his contract. Respondent cannot escape liability because appellant did nothing other than to take steps to prevent a further loss and an increase of damages. The rule is that a party to a contract cannot take advantage of his own omission to observe the requirements of his contract. If he breaches the contract he cannot interpose the breach as a defense to an action on the contract. “The rule is general that the right to rescind a contract rests wholly with the party who is without default. One cannot violate the contract himself and then seek a rescission on the ground that the other party has followed his example.” (State v. McCauley, 15 Cal. 458 . See, also, California Sugar etc. Agency v. Penoyar, 167 Cal. 274 , 280, [ 139 Pac. 671 ].) For these reasons we are satisfied that the evidence afforded no basis for the first ground of the motion for a nonsuit.

[5] Nor was the court justified in granting the motion on • the second ground, namely, that the action" was barred by subdivision 1 of section 337 of the Code of Civil Pro

Appellant, if he and respondent did not mutually abandon the contract, could wait until the time arrived for a complete performance of the contract on respondent’s part and then bring an action thereon for damages. (McCurry v. Purgason, 170 N. C. 463 , [Ann. Cas. 1918A, 907, 87 S. E. 244 ]; Ga Nun v. Palmer, 202 N. Y. 483 , [ 36 L. R. A. (N. S.) 922 , 96 N. E. 99 ].) As we have stated, the contract was a continuing, executory contract. Respondent, when he ceased caring for the bees, did not breach the contract in its entirety. It still had more than two and a half years to run, during which respondent was to render services in caring for the bees. At any time during that period, if appellant did not elect to rescind or abandon the contract, respondent might have returned and resumed his work. Appellant is suing to recover, not for injury done to his bees by reason of neglect in their care, but for damage resulting from respondent’s failure to perform that part of his contract whereby he obligated himself to make from the original colonies of bees furnished by appellant five hundred additional colonies by the end of the first year of the contract, i. e., on or before December 25, 1915; one thousand additional colonies by the end of the second year, and by the end of the" third year a number sufficient to bring the total to two thousand colonies. Though the contract was partially executed, the breach here complained of resulted from a failure to perform the unexecuted parts of the contract, and the case, therefore, comes squarely within the doctrine as announced by the New York court of appeals in Ga Nun v. Palmer, supra, where it is said: “It is quite true that there is a distinction made in the authorities with reference to contracts which still are wholly executory, and are to be performed in the future; but the distinction pertains to that which would constitute a breach of such contracts. Where the contract is wholly executory, there must be some express and absolute refusal to perform or some voluntary act on the part of the individual which renders it impossible for him to perform, in order to constitute an anticipatory breach for which an action will lie;

There is an abundance of authority for the position that appellant, if he did not elect to abandon or rescind the contract when respondent ceased caring for the bees, could wait until the expiration of the time when respondent was to complete his contract and then bring his action, meanwhile holding the contract as prospectively binding for the exercise of his right to bring suit at the end of the term of service contemplated by the contract. Thus in Hochster v. De la Tour, 2 El. & Bl. 678, the defendant, on April 12th, had agreed to employ the plaintiff in the capacity of a courier for a period of three months from the first day of June. But subsequently, and before the first day of June, the defendant gave the plaintiff notice that he would not require his services. Lord Campbell, after discussing the authorities, states, as a part of his conclusions, the following: “The man who wrongfully renounces a contract into which he had deliberately entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured; and it seems reasonable to allow an option to the injured party, either to sue immediately or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer.” And in Ga Nun v. Palmer, supra, the court says: “. . . the general rule is that a right of action does not accrue upon a contract until it is executed, or payment thereunder becomes due by its terms, and the statute of limitations does not commence to run until that event happens. The right to bring an action previous to that event is exceptional, and is only permitted in cases of a breach of a contract by one of the parties which permits the aggrieved party, at his option, to maintain an action for such breach, and recover the damages he has suffered on account thereof.” (Italics ours.) (See, also, 13 C. J., p. 653.)

Does the evidence necessitate the conclusion that there was a mutual abandonment of the contract more than four years before the action was commenced ? [6] As to whether a contract has been abandoned presents a mixed question of law and fact. (McCurry v. Purgason, supra.) And though the parties to a contract may abandon it by matter in pais, still the acts and conduct which may be relied on to constitute the abandonment must “be clearly proved, and they must be positive, unequivocal and inconsistent with the existence of a contract.” (May v. Getty, 140 N. C. 310 , [ 53 S. E. 75 ].) There is no unequivocal evidence of any abandonment of the contract on the part of appellant. His conduct in removing the automobile for safekeeping and in caring for his bees after respondent apparently had deserted the house and the automobile furnished for his use is not so unequivocal that it necessarily evidences an intention on appellant’s part to relinquish all rights under the contract. In order to hold on to the contract as prospectively binding upon both parties, so that a right of action for damages might accrue to him on the expiration of the time for complete performance by respondent, it was not necessary that appellant should permit his property—his automobile and

For the foregoing reasons we are satisfied that the non-suit was not warranted by the second ground upon which the motion was made.

[7] Respondent claims that the evidence introduced by appellant to prove Ms damages was wholly insufficient for that purpose. This was not specified as one of the grounds of the motion for a nonsuit, and, therefore, it may not now be urged in an effort to uphold the judgment. It is the settled doctrine that a motion for a nonsuit should specify the grounds upon which it is made, and the general rule is that a ground wMch is not stated cannot be considered.

The judgment is reversed.

Works, J., and Myers, J., pro tem., concurred.