Churchill Grain & Seed Co. v. Newton

• Citation: 88 Conn. 130,89 A. 1121
• Court: Supreme Court of Connecticut
• Decision Date: 19 March 1914
• Parties: CHURCHILL GRAIN & SEED CO. v. NEWTON.

89 A. 1121

88 Conn. 130

CHURCHILL GRAIN & SEED CO.

v. NEWTON.

Supreme Court of Errors of Connecticut.

March 19, 1914.

Appeal from Court of Common Pleas, Hartford County; Daniel A. Markham, Judge.

Action by the Churchill Grain & Seed Company against F. B. Newton. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff, a corporation doing business in Buffalo, N. Y., and the defendant who was a merchant at 1'lainville, Conn., contracted on June 8, 1912, for the sale of five cars, about 7,500 bushels, No. 2 White oats, to be shipped from Buffalo to points as later directed; deliveries in June or July, price 62 cents a bushel, or, if not taken until July, 62 1/2 cents, less freight to Boston points. And also for two cars new No. 3 White oats, to be shipped during September, 1912, to Plainville at 49 cents per bushel less freight to Plainville. Payment by sight draft bill of lading attached. The defendant took and paid for two cars of No. 2 oats and wired the plaintiff on June 18th to cancel the balance of the contract, which the plaintiff declined to do. After fruitless negotiations for a settlement, the defendant shortly before July 22, 1912, informed the plaintiff's agent that he should give no shipping instructions for any of the oats and would not accept or pay for any more oats under said contract. On July 22d and 24th at Worcester, Mass. the plaintiff sold three cars of No. 2 and two cars of No. 3 White oats at a loss, as found by the court, of $370, for which amount with interest judgment was rendered.

William F. Henney, of Hartford, for appellant.

A. Storrs Campbell, of Hartford, for appellee.

BEACH, J. (after stating the facts as above). The errors assigned relate only to the rulings of the trial court upon claims of law made at the trial, and do not present any claims for correction of the finding, although the evidence and exhibits have been certified up in attempted conformity with section 797 of the General Statutes. Under these conditions the findings of the trial court as made must be taken as the basis of our decision upon the questions of law presented by the assignments of error. We are not at liberty, in the absence of any assignments of error presenting claims for correction of the finding, to resort to the evidence and construct a new finding in whole or in part. Dennison v. Waterville Cutlery Co., 80 Conn. 596, 69 Atl. 1022.

The trial court held that the contract had been terminated before July 22d in consequence of the defendant's unqualified refusal to accept or pay for any more oats under the contract; and the principal question presented by the appeal is whether the court erred in so holding. There are other assignments of error, but they are founded upon the assumption that the contract remained in force and effect at the time when the defendant sold certain car loads of oats at Worcester on January 22d and 24th for the purpose of fixing the loss occasioned by the defendant's breach.

The first and third assignments of error present the claim that as a prerequisite to any recovery the plaintiff was bound to ship the oats to the place of delivery within the time limited by the contract. It is enough, without assenting to this claim, to point out that it begs the principal question in controversy by assuming that the contract remained in force until the expiration of the delivery period named therein. The third and fifth assignments of error, which claim that the plaintiff had no right to sell the oats to any other person than to the defendant, are not only open to the same criticism, but they wrongly assume that the defendant had acquired title under the contract to the oats which remained undelivered. It is clear, however, from the terms of the contract, that the agreement was for the future sale and delivery of car loads of oats which had not then been identified, and so far as any finding is concerned were not (except for the two car loads accepted and paid for) thereafter appropriated to the contract by the seller. The sale of certain car loads of oats on July 22d and 24th after the repudiation of the contract by the defendant was for the purpose...