Walker Bros. & Co., Ltd. v. Daggett

• Decision Date: 29 October 1917
• Docket Number: 19389
• Citation: 115 Miss. 657,76 So. 569
• Parties: WALKER BROS. & CO., LIMITED, v. DAGGETT
• Court: Mississippi Supreme Court

76 So. 569

115 Miss. 657

WALKER BROS. & CO., LIMITED, v. DAGGETT

No. 19389

Supreme Court of Mississippi

October 29, 1917

Division B

APPEAL from the circuit court of Jackson county, HON. J. H. NEVILLE Judge.

Suit by the Walker Bros. & Co., Limited, against Wm. A. Daggett. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed. Motion to remand sustained.

H. W Guatier, for appellant.

It is a well recognized rule that delivery to a common carrier in the ordinary course of business constitutes delivery to the purchaser and in this case purchaser ordered the goods F. O B. New Orleans, which was an instruction to the appellant to deliver same to the carrier. The supreme court of Mississippi in the case of Planters' Oil Mill Co. v. Falls, reported in 29 So. 786, has stated this rule as follows: "As between seller and buyer, goods ordered of the seller by the buyer are to be considered as delivered to the latter when they are delivered to a common carrier for transportation to him."

We do not contend that the seller (appellant) was compelled to follow but one course but that he had his choice of three courses; he may complete the contract on his part and sue for the contract price, or he may treat the contract as ended, retain the property and sue for the difference between the market value and the contract price, or he may sell all property at public or private sale for the best price he can obtain and sue for the difference between the price realized and the contract price. In this case the appellee contends that appellant had no legal right to follow the course he selected but that he should have sued for damages incurred by the purchaser's breach of the contract after he (the appellant) retained the goods. Appellee was wrongfully sustained in this contention by the lower court, in the case of Crawford v. Avery, 35 Miss. 205, the court said: "again; it is insisted, that under the facts stated in the declaration, the action could not be maintained for the price of the gin but that at all events, it should have been brought to recover damages for the non-performance of the special contract of the defendant. It is undoubtedly true, as a general rule, that if the seller is ready and offers to deliver the article as agreed to be furnished at the time and place stipulated in the contract, and the other party refused to accept it, the vendor may recover the price agreed to be paid."

This decision, we contend clearly sets down the rule to be followed in this case for in this appellant chose the first of the three remedies. He completed his part of the contract and sued for the contract price and this remedy has been positively allowed him by the courts of Mississippi.

In American Cotton Co. v. Herring, reported in 84 Miss. 693, the court lays down this rule in the following language towit: "The rule seems to be settled that there are three methods of arriving at a proper measure for damages on a breach of a contract of this kind: (1) the seller may complete the contract on his part and recover the contract price; (2) he may treat the contract as ended, retain the property as his own and sue for the difference between the market value of the cotton and the contract price; (3) he may sell the cotton at public or private sale, for the best price he can obtain and sue for the difference between the price realized and the contract price.

This rule is set forth in Benjamin on Sales (6 Ed.), pp. 744, 776, and also in Tiedman on Sales, sec. 333, et seq.

The appellant in this case elected to complete his part of the contract he delivered the underwear to the carrier as directed by the appellee and then sued for the contract price and his action in so doing has been upheld by the supreme court of the state of Mississippi in cases cited in this brief and I have been unable to find a Mississippi case which held otherwise.

H. B. Everitt, for appellee.

It is a well-settled rule of law in cases of this kind, that a buyer may not breach his contract without paying the penalty or the price as the case may be; if the goods are delivered to the buyer, the seller has a right to sue for the price in spite of the refusal on the part of the buyer to receive or accept, when that is the breach of the contract complained of. But when the order is countermanded before the goods are shipped or delivered there is immediately a breach of contract and the seller may sue for his damages occasioned by such breach, but under the rule that one damaged by breach of contract may not thereafter increase his damage and claim such increased damage and he cannot sue for the purchase price of the goods without delivery. A case directly in point is that of Sinka v. Chatham et al., 2 Tex. Civ. App. 312, 21 S.W. 948, which was decided by the supreme court of Texas in 1893. Citing the cases of Tufts v. Lawrence, 77 Tex. 526, 14 S.W. 165, and Gammage v. Alexander, 14 Tex. 419. See Southerland on Damages, 359; see, also, Southerland on Damages, 361; Falk v. Richardson, a Florida case reported 47 So. 666.

The rule as to the measure of damages in this case is quite clearly explained in case of Roehm v. Horst, 178 U.S. 1221, 20 S.Ct. 780, 788, 44 L.Ed. 953 and Hopkinville Milling Co. v. Gwin et al. (Ala.), 50 So. 270, and same case again before that court in 67 So. 382 where the court states the rule to be in a case much like this; in fact, the court saying where a buyer repudiates the contract and refuses to receive and accept the goods, the measure of damages is the...