Carr v. Stockton
| Decision Date | 01 July 1922 |
| Parties | CARR et al. v. STOCKTON. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by J. N. C. Stockton, as receiver of the Southern Naval Stores Company, against J. A. Carr and another, doing business under the firm name and style of Carr Bros. Judgment for plaintiff, and defendants bring error.
Reversed.
Syllabus by the Court
Contract interpreted in light of established custom or trade usage. An established custom or trade usage may annex incidents to a written contract, and a contract involving such a transaction should be interpreted in the light of such custom or usage.
Plaintiff cannot recover without proof of substantial performance or waiver. Recovery in a suit upon a contract requiring performance of certain acts by plaintiff cannot be sustained in the absence of proof of substantial performance by plaintiff or waiver thereof.
Violation of contract by one party releases other party therefrom. As a general rule, where a contract is violated by one of the parties thereto, the other party is thereby released from the contract.
One in inexcusable default may not repudiate contract because of other's default; right to demand performance presumed waived where not insisted on. A party to a contract who is himself in inexcusable default of performance of an essential covenant may not repudiate the contract because of the default of the other party. But where it does not appear that performance of such covenant has been insisted upon, and nothing appearing to the contrary, it may be assumed that the right to demand performance thereof has been waived.
Myers & Myers, of Tallahassee, and George C. Bedell of Jacksonville, for plaintiffs in error.
Martin H. Long, of Jacksonville, for defendant in error.
This is an action of contract. Upon a trial of the issues there was a directed verdict for plaintiff. Judgment was entered on the verdict, and defendants took writ of error.
The first and second assignments of error are abandoned.
The third assignment as amended presents for review the ruling of the court sustaining the demurrer to the first plea to the amended declaration.
The plaintiff sues as the receiver of the Southern Naval Stores Company.
The contract sued upon contains a provision:
'That, in consideration of the release of Carr Bros., the defendants, from an existing contract between Southern Naval Stores Company and defendants and from certain enumerated obligations of said contract to be performed by said defendants, the
The declaration alleges partial compliance only by defendants with this requirement of the contract for the years ending September 15, 1913, 1914, and 1915, since which time defendants have wholly failed and refused to make any shipments of turpentine and rosin to said company or pay the yearly installments required by the terms of the contract to be paid by them.
The plea, demurrer to which was sustained, avers in substance that defendants were producers of naval stores, and that the Southern Naval Stores Company was anaval Southern Naval Stores Company was a naval that, according to the customs of the naval stores factorage business, when not otherwise expressly agreed, shipments of naval stores to factors are to be sold by them on the market when received and account sales rendered to the shipper showing the price received, expenses of sale, including commissions, and net balance due the shipper, which balance is placed to his credit subject to his draft, and that the contract sued upon was made in reference to this custom; that prior to the commencement of the war in Europe in the year 1914 shipments of naval stores were made by defendants to the Southern Naval Stores Company as factor, and that the business between them was conducted in accordance substantially with this custom; that, because of the unsettled conditions of the naval stores market resulting from the war, defendants were requested by the factor to make no further shipments until otherwise wise advised, whereupon by mutual understanding shipments under the contract were discontinued until the beginning of the year 1915, when shipments under the contract were resumed and were made and received by the factor in sufficient quantity to produce a net balance due defendants of $1,430.50, for which amount defendants drew a sight...
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...§ 7388 at 189 (1976). Commercial transactions and contracts should be interpreted in light of custom or trade usage. Carr v. Stockton, 84 Fla. 69, 92 So. 814, 815 (1922); Fred S. Conrad Construction Co. v. Exchange Bank, 178 So.2d 217, 221 (Fla. 1st DCA 1965). Since we are also confronted, ......
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