Fahey v. Updike Elevator Co.

• Decision Date: 01 March 1918
• Docket Number: 19641
• Citation: 166 N.W. 622,102 Neb. 249
• Parties: JOHN T. FAHEY ET AL., APPELLANTS, v. UPDIKE ELEVATOR COMPANY, APPELLEE
• Court: Nebraska Supreme Court

166 N.W. 622

102 Neb. 249

JOHN T. FAHEY ET AL., APPELLANTS, v. UPDIKE ELEVATOR COMPANY, APPELLEE

No. 19641

Supreme Court of Nebraska

March 1, 1918

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed.

REVERSED.

Montgomery Hall & Young and R. E. L. Marshall, for appellants.

Edward P. Smith and William A. Schall, contra.

ROSE J. SEDGWICK, J., not sitting.

OPINION

ROSE, J.

Plaintiffs are grain dealers in Baltimore, Maryland. Defendant is a grain dealer and operates an elevator in Omaha. Nebraska. This is an action to recover damages aggregating $ 37,662.05 for failure of defendant to ship wheat to Baltimore according to the terms of four written contracts. The petition contains four counts. In the first, plaintiffs allege that defendant sold them 100,000 bushels of wheat June 24, 1914, shipment to be made to them at Baltimore in August, 1914; that defendant delivered 96,466.80 bushels and refused to deliver the remainder of 3,533.20 bushels; and that the difference between the contract price, 86 1/2 cents a bushel, and the market price on the last day of the shipping period, $ 1.18 1/2, was 32 cents a bushel, resulting in a loss of $ 1,130.62, with interest from August 31, 1914. In the second count plaintiffs pleaded a similar contract July 6, 1914, for 100,000 bushels of wheat at 87 1/4 cents a bushel, shipment to be made at defendant's option in either the last half of August or in September, 1914; failure to ship any wheat; market price on the last day of the shipping period, $ 1.11 1/2 a bushel; loss of 24 1/4 cents a bushel, or $ 24,250, with interest from September 30, 1914. The third count is based on a similar contract July 8, 1914, for 100,000 bushels of wheat at 87 1/8 cents a bushel, shipment to be made in August, 1914; delivery of 87,350 bushels; failure to deliver 12,650 bushels; market price on last day of shipping period $ 1.18 1/2; loss of 31 3/8 cents a bushel, or $ 3,968.93, with interest from Angust 31, 1914. The fourth count is based on a contract July 11, 1914, for 25,000 bushels of wheat at 85 1/4 cents a bushel, shipment to be made in August, 1914; failure to ship any part of it; market price on last day of shipping period $ 1.18 1/2 a bushel; loss of 33 1/4 cents a bushel, or $ 8,312.50, with interest from August 31, 1914. Defendant admitted the contracts of June 24 and July 8, and, among other things, alleged that it was willing to ship all of the wheat in the month of August, and elected to do so, but that plaintiffs had no facilities for receiving shipments at Baltimore, and that the carriers consequently refused to furnish cars; that defendant notified plaintiffs of the cancelation of the contracts after they failed to procure cars, and that it was then their duty to buy wheat on the open market, which could have been bought for 92 9/10 cents a bushel, including freight charges to Baltimore. Upon a trial of the issues the court directed the jury to find in favor of plaintiffs and instructed that the measure of recovery was the difference between the contract prices and the market prices within a reasonable time after defendant had notified plaintiffs that it would not comply with the contracts. From a judgment on the verdict in favor of plaintiffs for $ 14,014.61 only, they have appealed.

The first assignment of error relates to the measure of damages. Defendant did not appeal from the judgment against it for $ 14,014.61. It follows that the sale of wheat, the defendant's breach of contract and the liability for resulting damages are established by the record. The contracts pleaded in the petition were made by the parties. Plaintiffs bought the wheat for export from Baltimore. An embargo on shipments for that purpose, effective from August 4, 1914, to August 19, 1914, prevented defendant in the meantime from getting cars. For this condition plaintiffs were in nowise responsible. Defendant wired them August 15 1914, that it would cancel the purchase of the unshipped wheat under the contracts of June 24, 1914, July 8, 1914, and July 11, 1914. Cancelation of the contract of July 6, 1914, was wired to plaintiffs August 17, 1914. Plaintiffs did not consent to the cancelations, but waited until the shipping periods had expired and bought wheat on the open market to take the place of what defendant...