Terry v. Beatrice Starch Company

• Citation: 62 N.W. 255,43 Neb. 866
• Decision Date: 19 February 1895
• Docket Number: 5697
• Parties: STEPHEN D. TERRY v. BEATRICE STARCH COMPANY
• Court: Supreme Court of Nebraska

62 N.W. 255

43 Neb. 866

STEPHEN D. TERRY v. BEATRICE STARCH COMPANY

No. 5697

Supreme Court of Nebraska

February 19, 1895

ERROR from the district court of Gage county. Tried below before BROADY, J.

REVERSED AND REMANDED.

L. M Pemberton, for plaintiff in error:

Defendant's answer admits the making of the contract as alleged by plaintiff, and admits the violation of the contract by itself in the first instance. It then alleges as a defense that after violating the contract itself, it put an end to the contract because plaintiff did not make payments as stipulated in the contract. Defendant could not take advantage of its own wrong and breach of contract to prevent plaintiff having the benefit of his contract. (Jones v Taylor, 56 Am. Dec. [Tex.], 55; Cape Fear Navigation Co. v. Wilcox, 78 Am. Dec. [N. Car.], 260.)

As to plaintiff's measure of damages the following authorities are cited: Hinde v. Liddell, L. R., 10 Q. B. [Eng.], 265; Simpson v. Crippin, L. R., 8 Q. B. [Eng.], 14; Scott v. Kittanning Coal Co., 89 Pa. St., 231; Blackburn v. Reilly, 47 N.J.L. 290; Freeth v. Burr, L. R., 9 C. P. [Eng.], 208.

Alfred Hazlett, contra.

OPINION

See opinion for statement of the case.

NORVAL, C. J.

On the 20th day of October, 1890, the plaintiff and defendant entered into a written contract, of which the following is a copy:

"This agreement, made and entered into this 20th day of October 1890, between the Beatrice Starch Company, of Gage county, Nebraska, party of the first part, and S.D. Terry, of the same place aforesaid, party of the second part, witnesseth: The said party of the first part, for and in consideration of the payments and agreements hereinafter promised and entered into and to be made and performed by the said party of the second part, hereby agrees to deliver in tanks to second party all the refuse corn arising and accumulating from the manufacture of starch in the starch manufactory of first party in Beatrice, Nebraska, for the period of two years from and after the first day of November, 1890, and also agrees to furnish grounds for feed lot, viz., the two (2) acres adjoining first party's property on the south, it being the same property purchased of Zimmerman by first party, and to furnish tank of sufficient capacity to hold at least two days' grinding, and also to furnish steam for heating the feed furnished suitable for feeding. And the party of the first part further agrees to run and operate said manufactory during said term, unless prevented by unavoidable accidents and casualties, so as to grind not less than two hundred and fifty (250) bushels per day for each working day, excepting the months of July and August of each year. Said delivery to be made on the feed lot above described. In consideration of the premises the said party of the second part agrees to take said refuse corn and to pay therefor the sum of six and two-thirds (62/3) cents for each and every bushel of corn ground in said starch manufactory, for the time aforesaid, payments to be made every sixty days during the continuance of this contract. It is further agreed by and between the respective parties that the second party is to make all improvements on said feeding lot that he may think necessary for feeding purposes, except tanks to store feed in, which first party furnished, and at the expiration or other determination of this contract the second party agrees to purchase all improvements placed on said feeding lot for feeding purposes by second party, at a price to be agreed upon by said parties; and in case they cannot agree as to price, then it is to be referred to three (3) disinterested parties, each party selecting one, and the two thus selected to select the third, and the price fixed and agreed upon by two of said arbitrators shall be binding upon the parties hereto. It is further agreed that if on sixty (60) days' trial it shall be found that said refuse corn was not suitable feed for cattle and that when properly fed therewith the cattle would not thrive on said feed, then this contract may be determined by the party of the second part by giving first party fifteen (15) days' notice of such election; but in case of such determination the first party is not to take or pay for the improvements made on said feed lot by second party and he may remove them. It is further agreed that if first party cannot commence to supply said refuse corn on the 1st day of November, 1890, he is to be allowed ten days (10) grace thereafter to commence the delivery of said refuse corn. It is further agreed that first party is to supply second party with the necessary water to be used for feeding purposes.

"Signed this 20th day of October, 1890.

"THE BEATRICE STARCH COMPANY,

"By A. C. SCHEIBLICH, Sec. & Treas.

"S. D. TERRY.

"In presence of

"A. H. BABCOCK."

This action was brought by the plaintiff to recover damages for an alleged breach of the foregoing agreement, by reason of the defendant's failure to furnish the refuse corn according to the terms of the contract. The answer, after admitting the incorporation of the defendant and the execution of the contract above set forth, admits that the defendant did not commence to furnish to the plaintiff any feed prior to December 1, 1890, and from which time, until the 15th day of the same month, it did not supply the full amount of feed required by said contract, and alleges that it was prevented by unavoidable accidents and causalities from so doing. The defendant further answering avers that, with the exceptions aforesaid, it has performed all the terms and conditions of said contract on its part to be kept; that plaintiff made no claim for damages for the failure of the defendant to supply the full amount of feed required by the contract, from the 10th day of November, 1890, to the 15th of the following month, but continued in possession under said contract, and used the feed furnished by the defendant up to February 28, 1891, when defendant declared the contract forfeited, and annulled the same, by reason of plaintiff's failure to perform the same and make the payments therein required of him. The answer sets up, by way of counter-claim, that from December 15, 1891, defendant furnished the full amount of feed to plaintiff required by the contract, amounting in value to the sum of $ 1,099.56, and that plaintiff has not paid said amount, nor any part thereof. The defendant consents to the allowing $ 200 as damages to the plaintiff by reason of the failure to furnish the amount of feed stipulated in the contract, for and during the time stated aforesaid, and prays judgment against the plaintiff for said sum of $ 1,099.56, with interest thereon, less the $ 200 damages to plaintiff. Plaintiff replied to the answer by a general denial. There was a trial to a jury, with a verdict and judgment of $ 300 in favor of the defendant. Plaintiff brings the case to this court for review.

It will be observed that the contract, by its terms, was to continue in force for the period of two years from and after the taking effect thereof, which was fixed for November 1, 1890 unless the defendant was unable to commence complying with the contract on that date, in which case he was allowed ten days after the time specified in which to commence the delivery of the refuse corn arising and accumulating from the manufacture of starch at its factory, or mill; that it was to grind not less than 250 bushels of corn per day for the term of two years, except during certain months; defendant was to furnish and deliver to plaintiff during said period all of said refuse corn, for which plaintiff agreed to pay six and two-third cents cents per bushel for every bushel ground by the defendant. The evidence discloses that the company did not commence the delivery of the feed to plaintiff until the fore part of December, 1890, and ceased to furnish any after February 28, 1891, and for a portion of the time between said dates it did not furnish the full amount of feed, or refuse corn, stipulated for by the contract. The plaintiff contends he was entitled to damages for the full two years the contract was to run, while the trial court ruled, upon the admission of testimony, that he could only recover the damages sustained up to the commencement of the action in the court below, which was on March 26, 1891. There was no error in the ruling mentioned. This suit was instituted more than a year and a half before the contract by its terms would have expired, and it is plain that plaintiff was not entitled to recover in this cause for any damages he might sustain by reason of the breach...