Heller v. Ferguson
| Decision Date | 24 May 1915 |
| Parties | THOMAS F. HELLER, Respondent, v. N. A. FERGUSON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
AFFIRMED.
Case affirmed.
N. T Gentry and Finley & Sapp for appellant.
(1) The measure of damages for breach of a contract of sale is the difference between the contract price and the market value at the time and place of delivery under the contract. 35 Cyc 633; Gill v. Commission Co., 84 Mo.App. 456; Howard v. Haas, 131 Mo.App. 499; Chalice v Witte, 81 Mo.App. 84. (2) The reason for fixing the market value is because it is supposed that the buyer could go into the market and get what the seller failed to deliver. Gill v. Commission Co., 84 Mo.App. 461. Where no time of delivery is agreed upon the law implies that the goods are to be delivered within a reasonable time. 35 Cyc 179; Glasgow Milling Co. v. Burgher, 122 Mo.App. 19; Met. Street Ry. Co. v. Rope Co., 156 Mo.App. 640. (3) The market value at the end of a reasonable time should be taken as fixing the measure of damages. The buyer cannot wait until the market rises and then claim damages on the later market price. Gill v. Commission Co., 84 Mo.App. 461. (4) Where the facts are undisputed, what is a reasonable time is a question of law for the court. 4 Elliott on Contracts, 491, sec. 3271; Bradley v. Jones, 153 Ky. 174, 154 S.W. 1091. (5) Where the facts are disputed, the question as to what is a reasonable time is for the jury, to be determined by the circumstances in evidence, such as the character of the goods, the facilities available for transportation, the distance the goods must be carried, and the usual course of business in the particular trade. 35 Cyc. 183.
Gillispie & Conley for respondent.
(1) Appellant's authorities correctly announce the law, although he does not state correctly the principle they announce. The principle they announce is: The measure of damages is the difference between the contract price and the value of the same, at the date of the breach of contract. Howard v. Haas, 131 Mo.App. 499; Chalice v. Witte, 81 Mo.App. 84. (2) But the buyer may waive a failure to deliver in time. If the delay is once waived the right to insist on delivery within the specified time cannot be reasserted. 35 Cyc., p. 184; Mastin v. Grimes, 88 Mo. 485. (3) Hence, there is no breach until a further time is expressly fixed by the parties themselves or results from operation of law. In this case both parties were treating the contract as being a subsisting contract until defendant demanded a fulfillment of it on May 9th. As respondent views it, under the authorities above cited that is the date the court should have fixed, if it fixed any definitely, for the measure of damages. But what was a reasonable time was a question of fact for the jury. State v. King, 44 Mo. 238; Bryant v. Saling, 4 Mo. 522; 35 Cyc. 183; 9 Cyc. 613. (4) Parties are concluded by their own instructions, whether abstractly correct or not. Jennings v. Railroad, 99 Mo. 394; Hopkins v. Modern Woodmen, 94 Mo.App. 409, and cases cited. (5) Parties are bound by the theory on which they tried the case. Riggs v. Railroad, 216 Mo. 304, 318; Wallower v. Webb City, 171 Mo.App. 214; Popineau v. Buick Co., 168 Mo.App. 547; Ogler v. Sidwell, 167 Mo.App. 292.
The suit herein is over the breach of an oral contract for the sale and delivery of corn. Respondent alleged that on or about February 1, 1914, appellant contracted to sell and deliver to him four carloads of ear corn at sixty-seven and one-half cents per bushel to be paid on delivery; that 800 bushels was a reasonable carload; that on or about March 25, 1914, appellant, in part performance of said contract, delivered one carload, which respondent received and paid for; that appellant failed and refused to deliver the other three carloads although a reasonable time has long since expired; that respondent made a demand of appellant to complete his delivery of said corn on or before May 9, 1914, which latter date was a reasonable time for the completion of the delivery of said corn, but that completion of delivery was refused.
Appellant claimed that the four carloads were not ordered under one contract but were made at different times and occasions, and set up the Statute of Frauds concerning the sale of goods of more than $ 30 in value; also that he sold the corn as agent of his brother whose ownership of the corn and principalship he disclosed to respondent. These were denied in the reply.
The questions whether there was or was not an agreement in one contract to sell and deliver four carloads, and whether the one car that was delivered was in part performance of that contract, were submitted in instructions as was also the question of whether appellant acted as agent of a disclosed principal. The jury returned a verdict assessing damages at $ 90 upon which judgment was rendered.
The judgment should be affirmed. There is no dispute over the law involved. The issues were plain and simple, easy to be understood, and the facts were few and free from intricacy. They involved matters which the triers could readily determine, and their solution ought to be accepted unless there was error in the admission of evidence, or in the submission of the case, of such a nature as to clearly and undoubtedly mislead them. We do not think there was any such error in the case.
It is the contention of appellant that, as thirty days was a reasonable time for delivery according to the evidence, the contract was breached about March 1st, and therefore it was error to admit evidence as to the value of corn so late as May 9th, the date which respondent had set as the limit for delivery. There was evidence that the market price of corn gradually rose after March 1st and was much higher May 9th. Appellant says, in order to get the true measure of damages only the value of corn around the first part of March should have been considered and not its value at a later date. There is no doubt but that the difference between the contract price of the commodity and the market value of the same at the date of the breach is the true measure of damages. [Howard v. Haas, 131 Mo.App. 499, 109 S.W. 1076; Chalice v. Witte, 81 Mo. 84; Gill v. Johnson, etc., Com. Co., 84 Mo.App. 456.] And if the time of the breach is definitely fixed, then, of course, only the market value of the commodity at that time should be considered. But in this case, there was no time fixed in the contract for the delivery of the corn. And while the time for delivery was, therefore, a reasonable time after the making of the contract, yet, even if a specific time had been fixed, a failure to deliver in time may be waived or the time postponed. [35 Cyc. 184; Mastin v. Grimes, 88 Mo. 478.] This is exactly what the parties to this contract did. The evidence fully shows that both vendor and vendee were treating the contract as a subsisting obligation long after the expiration of thirty days after the contract was entered into. Finally, the buyer notified the seller that he could wait no longer than the 9th of May for delivery to be made, and, it would seem that, if any date should be definitely fixed for the breach, it would be this time. But whether this be true or not, certainly the question of what was a reasonable time, under all the circumstances, was for the jury. It is determined by the circumstances of the case. [State ex rel. v. King, 44 Mo. 238; 35 Cyc. 183.] And it rests "largely on the conduct of the contracting parties." [Mastin v. Grimes, 88 Mo. 478.] It is that time "it is rational to suppose that the parties contemplated." [Moxley's Admrs. v. Moxley, 59 Ky. 309.] Under the circumstances in evidence and the course of dealing between the parties and their treatment of the question of time themselves, the question of what was a reasonable time in which to perform the contract, so as to show definitely when it was breached, could not be stated as a matter of law. ...
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