Pancake v. George Campbell Co

• Decision Date: 24 November 1897
• Citation: 28 S.E. 719,44 W.Va. 82
• Court: West Virginia Supreme Court
• Parties: PANCAKE et al. v. GEORGE CAMPBELL CO.

28 S.E. 719

44 W.Va. 82

PANCAKE et al.

v.GEORGE CAMPBELL CO.

Supreme Court of Appeals of West Virginia.

Nov. 24, 1897.

Parol Evidence—Contracts—Ambiguity—Sales —Breach of Contract—What Constitutes—Remedy.

1. While prior or contemporaneous declarations of parties contracting cannot be received to interpret an unambiguous written contract, yet evidence that certain alterations from the first draft of the contract were made by the parties before its execution is admissible to show their real intentions.

2. Where there is a contract for the sale of goods, and the purchaser repudiates the contract, and refuses to consummate it by acceptance of the goods, the seller may at once sue for damages for breach of the contract, without waiting for the period for the delivery of the goods to elapse, and without tender of them.

(Syllabus by the Court.)

Error to circuit court, Hampshire county; R. W. Dailey, Jr., Judge.

Action by Pancake & Co. against the George Campbell Company for damages. Plaintiffs had judgment. Defendant brings error. Affirmed.

R. W. Monroe, for plaintiff in error.

H. B. Gilkeson, for defendants in error.

BRANNON, J. The plaintiff in error, by counsel, insists that its demurrer to the declaration should have been sustained. The declaration states that the following written contract was made between the parties:

"Romney, W. Va., May 15, 1893. We have this day sold to George Campbell Co. 1, 000 tons of chestnut oak bark, 2, 000 lbs. to the ton, for seven dollars and twenty-five cents (7.25) per ton; no bark to be delivered until after August 1st, except as said George Campbell Co. may direct. All bark delivered f?om June 1, 1893, to June 1, 1894, on their scales at Romney; bark to be in good merchantable condition, and dry, and, if not in such condition, to be docked so as to make it equivalent to good and dry bark. All bark received during week to be paid for at end of same. Pancake & Co.

"We hereby accept the above terms. George Campbell Co., per T. D. Campbell."

The declaration avers that the plaintiffs, Pancake & Co., between the 1st day of June, 1893, and 30th of September, 1893, were ready and willing to deliver to the defendant the bark, and offered to deliver the same, and the defendant refused to accept the same. The suit was brought for the recovery of damages, for the breach of the contract, on 30th of September, 1893. The defendant claims that it was prematurely brought, and that the contract contemplated a ratable monthly delivery from August 1, 1893, to June 1, 1894, —an average delivery of so many cords per month—and that the plaintiffs could not exercise the right of delivering all at once, or faster than the ratable monthly average, and could not sue for breach of contract on the 30th of September, 1893. Some counts of the declaration would not be obnoxious to the demurrer, they being counts for goods sold and delivered; but, other counts going for the whole damage for breach of the contract to accept and pay for 1, 000 tons of bark, we must interpret the legal effect of the written contract.

I do not think there is any ambiguity in the contract, calling for or admitting any oral evidence for its interpretation. The contract did give the defendant the right to refuse to take any bark until after August 1, 1893, but gave no such right of refusal after that, since the contract imposed upon Pancake & Co. the duty of delivering the bark between 1st of June, 1893, and 1st of June, 1894, giving them the right to deliver between these dates in such quantities and at such times as they chose. The very fact that the writing gave the Campbell Company the right to refuse bark up to the 1st of August, 1893, implies the right of the other party to deliver as it chose afterwards. There is no limitation upon that right in the writing, and it is the reflex of the intent of the parties. Pancake & Co. had the right to take the entire time between 1st of August, 1893, and 1st of June, 1894, for delivery; but the other side had no right to refuse to accept bark between those dates. These considerations would overrule the demurrer, for, as the declaration alleges the offer to deliver the whole quantity, and the refusal of the defendants to accept, it gives immediate cause of action. The plaintiff is not suing for the price of the whole quantity of bark, but for some bark delivered, and for damages for refusal to accept the balance, and when once the Campbell Company refused to go on with its contract, as the declaration alleged it did, the plaintiff could, without actual delivery or even tender of the bark, and without waiting for the 1st of June, 1894, to arrive, sue for damages. When one party refuses to complete the contract, the other can sue for consequent damages atonce. James v. Adams, 16 W. Va. 245; 3 Am. & EDg. Enc. Law, 908; Johnson v. Burns, 39 W. Va. 661, 20 S. E. 686; Meredith v. Salmon, 21 Grat. 769; 1 Am. & Eng. Enc. Law, 541.

It is claimed that the court erred in allowing Pancake to be asked, after he had said that the draft of the contract was in the handwriting of Campbell, in whose hand the interlineations were, to which he answered, "In mine, " and was then asked, "How did those interlineations come to be made?" and he answered: "As the contract...