York-Draper Mercantile Co. v. Lusk

• Decision Date: 10 January 1891
• Citation: 25 P. 646,45 Kan. 182
• Parties: THE YORK-DRAPER MERCANTILE COMPANY v. BENJAMIN LUSK
• Court: Kansas Supreme Court

25 P. 646

45 Kan. 182

THE YORK-DRAPER MERCANTILE COMPANY v. BENJAMIN LUSK

Supreme Court of Kansas

January 10, 1891

Error from Rice District Court.

THE opinion states the case.

Judgment reversed.

M. A Thompson, for plaintiff in error.

C. F Foley, for defendant in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

August 2, 1887, the defendant contracted to sell and deliver to the plaintiff at Dodge City, Kansas, all the corn he then owned, at 80 cents per hundred pounds. The said corn was in crib at Stafford, Kansas, and amounted to 5,091 bushels, or 285,096 pounds. The jury found that the corn was to be delivered in a reasonable time. On the same day, August 2, after the contract was completed between the parties, the defendant wrote a letter to the plaintiff at Dodge City, which was received there on the 3d, notifying it, the plaintiff, that he would not deliver the corn at 80 cents per hundred pounds, but said he would deliver it at 85 cents per hundred. And on the next day, August 3, the defendant wrote the plaintiff at Dodge City, that he would not deliver the corn at 85 cents, which letter was received by plaintiff August 4. On August 3, corn was worth 80 to 85 cents per hundred at Dodge City. August 8, it was worth $ 1 per hundred, and continued at that price until the 1st of September, when it went to $ 1.15.

At the September term, 1888, the case was tried by a jury, which gave a verdict for the plaintiff for $ 153.31. The plaintiff filed a motion for a new trial, which was overruled.

The only question in the case is, What is the proper measure of damages? The plaintiff claimed the measure of damages was the difference between the contract price, and the price of corn at the time and place of delivery, and asked the court to so charge the jury. The court refused to charge the jury as requested, and instructed them that the measure of damages was the difference between the contract price, and the price of the corn at Dodge City at the time the defendant notified the plaintiff that he would not deliver the corn. This instruction and the refusal of the court to grant a new trial are complained of as error.

It is well settled that the general rule for the measure of damages, in cases like this, is the difference between the contract price and the market value of the article purchased, at the time and place of delivery. (Stewart v. Power, 12 Kan. 596; Gray v. Hall, 29 id. 704. Where the buyer refuses to accept the goods purchased, Benjamin on Sales, lays down the rule as follows :

"SECTION 1118. The date at which the contract is considered to have been broken, is that at which the goods were to have been delivered, not that at which the buyer may give notice that he intends to break the contract, and to refuse accepting the goods." (5 M. & W. 475; 96 Ill. 13; 105 id. 170.)

We do not find the exact converse of this rule stated in Benjamin. But we know of no reason why it should not be equally the law. "The same doctrine prevails in cases where the contract is to be performed on a certain day, and before that time the vendor declines to carry out the contract." (Wood, Mayne, Dam. 205; 8 Taunt. 540; 5 M. & W., 476.)

"The time of' delivery, and not the time when the seller gives notice that he intends to break the contract, is the rule. Thus, where the defendants renounced a contract for the delivery of iron rails, it was held that the time when the contract was to be considered as broken, was at the time of delivery." (Windmuller v. Pope, 107 N.Y. 674, 14 N.E. 436.)

"If the vendor puts it out of his power to comply with his contract, by a sale of a portion of the goods to another, before the time stipulated for the delivery, the vendee is entitled to the difference between the contract price, and the market price of all the goods purchased at the time and place of delivery." (Field, Dam. § 247; Crist v. Armour, 34 Barb. 378.)

"In the absence of any evidence on the part of the defendants, that the plaintiffs could have gone into the market and obtained another similar contract on such terms as would mitigate their loss, the measure of damages was the sum of the difference between the contract price, and the market price at the period of delivery." (Benj. Sales, § 1333.)

"As to the effect of breach of contract of sales, when the bargain was for delivery by installments, it is held that in the absence of any evidence on the part of the defaulting seller, that the buyer could have gone into the market and obtained another similar contract on such terms as would mitigate the loss, the measure of the damages is the sum of the difference between the contract price and the market price at the several periods of delivery." (5 Wait, Act. & Del. 622; 3 Eng. R. 429; 6 id....