Adler v. Kiber
| Decision Date | 07 December 1893 |
| Citation | 27 S.W. 23 |
| Parties | ADLER et al. v. KIBER.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from Washington county court; E. P. Curry, Judge.
Action by A. Adler & Co. against F. Kiber for breach of contract. Judgment for defendant. Plaintiffs appeal. Reversed.
Offa L. Eddins and Wm. P. Ewing, for appellants. Searcy & Garrett, for appellee.
The parties made a contract by which the appellants agreed to sell and deliver to the appellee at Brenham, at a day subsequent, 100 barrels of sugar of a specified quality and at a stipulated price. No right was reserved by either party to countermand or recede from the agreement. Appellee on same day undertook to countermand his order for the sugar by so notifying the agent of appellants through whom the contract was made, and on the next day he wired a countermand to appellants at New Orleans. Both the agent and appellants declined to rescind or to recognize appellee's right to countermand; and, at the time fixed for delivery, appellants tendered to appellee, at Brenham, sugar such as the contract provided for, and, upon appellee's refusal to receive it, sold it and sued for damages, claiming the difference between the contract price and the sum realized at the sale.
At the trial the court charged the jury that the measure of damages was the difference between the contract price and the market value of the sugar at the time of the countermand; and, as there had been no change in market value before the countermand, the jury found for the defendant. This charge was erroneous. The defendant had not the right to countermand the order, and thereby break the contract. The agreement was clear and unambiguous, and, when the minds of the parties met, both were bound by their agreement. The plaintiffs could not be deprived of the benefits to be derived from the contract by the act of the defendant. The contract was executory, no specific property being appropriated to it, and, therefore, no title ever passed; and, upon a breach by the defendant, plaintiffs' remedy was simply an action for damages. The measure of their recovery was compensation for their loss resulting from the refusal of the defendant to perform. Such loss was plainly the difference between the market value of the sugar at Brenham at the time of delivery and the price fixed by the contract. Plaintiffs by the contract were allowed until the appointed time to perform their agreement, and were entitled to such benefit as could be derived...
To continue reading
Request your trial
-
Aldridge v. Aldridge
...the grantor retains a lifetime interest and the possession of the land. 1 Jones on R. P. in Conveyances, secs. 526-527; vol. 2, sec. 1232; 27 S.W. 23; Spencer v. Robbins, 5 726; Matter of Probate of Will of Frederick Diez, 50 N.Y. 88; Allen v. Gabbert, 166 Mo. 596; Kelley v. Shimer, 53 N.E.......
-
J. C. Engelman, Inc. v. Sanders Nursery Co.
...manufactured or grown the title does not pass at least until the date of performance: Gammage v. Alexander, 14 Tex. 414; Adler v. Kiber, 5 Tex.Civ.App. 415, 27 S.W. 23; Tufts v. Stuart, Tex. Civ.App., 23 S.W. 834; Palestine Ice, Fuel & Gin Co. v. Walter Connally & Co., Tex.Civ.App., 148 S.W......
-
Lathrop-Marshall Grain Co. v. Nash
...Kansas City Life Ins. Co. (Tex. Civ. App.) 233 S. W. 352; Planters' Oil Co. v. Gresham (Tex. Civ. App.) 202 S. W. 145; Adler v. Kiber, 27 S. W. 23, 5 Tex. Civ. App. 415; Burleson & Baker v. Sugarland Industries (Tex. Com. App.) 255 S. W. 165; Specialty Furniture Co. v. Kingsbury (Tex. Civ. ......
-
Benton Roberts Dry Goods Co. v. Cyrus W. Scott Mfg. Co.
...article purchased he is entitled to recover the contract price. Jaeggli v. Phears, 30 Tex. Civ. App. 212, 70 S. W. 330; Adler v. Kiber, 5 Tex. Civ. App. 415, 27 S. W. 23; Murchie v. Cornell, 155 Mass. 60, 29 N. E. 207, 14 L. R. A. 492 and notes, 31 Am. St. Rep. 526; Piper Co. v. Oppenheimer......