Campbell v. Ponticopoulos, Insurance

DORAN, J. This is an appeal from the judgment. The action is for money due for lumber sold and delivered to defendant and for damages for breach of contract. The complaint, in four counts, alleges in Count I that defendant wrongfully terminated the contract. Count II is a common count for goods sold and delivered. Count III is upon an account stated and for damages and Count IV is an action upon an open book account.

Defendant and appellant filed an answer denying the ma[379]terial allegations of the complaint as they pertain to the damages and the performance of the contract by respondents. Appellant also set up in its answer a second and separate defense, the right of defendant to cancel the contract should plaintiffs default in their performance and such default continue for 24 hours, and further alleges that plaintiffs failed to deliver lumber of the specified grade, which caused defendant to perform extra labor and carpentry in the construction of its houses, all to its damage in the sum of $30,950, and that defendant was compelled to purchase lumber of the proper grade elsewhere and was thereby damaged in the sum of $36,967. Said second defense further contained the item of damage that the lumber delivered was of less value than the amounts contracted for, and that, as a result, defendant was damaged in the sum of $11,838.99.

Appellant’s answer also contained a third and separate defense, alleging that the inferior lumber delivered caused delay in the construction schedule and increased the interest on defendant's loans and increased defendant’s overhead for maintaining a large project, all to defendant’s damage in the sum of $12,741.72.

Defendant also filed a cross-complaint, wherein it is alleged that the provisions of the agreement pertaining to the size and grades of lumber were violated, and the fact that a substantial portion of the lumber delivered in the later stages of the contract was one to two grades below that specified in the contract; that extra carpentry had to be used; that lumber was purchased at a higher price from another firm, after cancellation; and alleged substantially the same items of damages as set forth in the separate defenses of defendant’s answer.

Plaintiffs filed an answer to the cross-complaint, alleging that they had performed under the terms of the contract; that said contract was wrongfully terminated by defendant.

It is argued by appellant that,