141 S.W.2d 436 | Tex. App. | 1940
Morten Milling Company has sued appellant for an alleged breach of a written agreement to buy flour, and recovered judgment of $2,743.04, which has been duly appealed. Under such contract, dated June 18, 1937, O. K. Bakery, defendant below, agreed to purchase 2,000 barrels of “Drinkwater” flour, of the Milling Company, @ $4.95 per barrel, terms of payment to be “usual”, which was understood to mean thirty days after each delivery. Defendant alleged in defense that, after it had accepted and paid for more than one-half of the flour, the Milling Company, through its agents, South Texas Grain Company and W. R. Archer, refused to deliver any further flour, except for cash; and that such refusal constituted a breach of the contract by plaintiff, whereby defendant was justified in refusing to accept any further tenders of flour, so notifying plaintiff, etc. To such defense, by supplemental petition, plaintiff alleged that in consideration of its forbearance to sue defendant on certain other items of indebtedness, the contract of June 18, 1937, was changed to provide that defendant would pay cash for all flour subsequently shipped.
In a jury trial, defendant admitted liability of $950.37 on a prior debt, but strenuously resisted plaintiff’s claim that it was due any amount in liquidated damages for breach of contract, under the June, ’37, writing, wherein provision is made for such damages in case of default by the buyer. The seller’s remedy (and on which plaintiff bases its further recovery herein) is here quoted: To “Terminate the contract as to any unshipped balance, and, for each barrel of flour un-shipped, recover from Buyer as liquidated damages a sum to be computed by the following formula: (a) One-sixth (l/6c) cent per barrel per day for each day from date of contract to date of termination; plus (b) twenty (20c) cents per barrel, as to the cost of selling; plus (c) amount of decline, if any, per bushel in the average market price of cash wheat in carload lots at the mill, or basing point (at Seller’s option), between date of contract and date of termination, multiplied by four and six-tenths (4.6) times the • number of barrels of flour remaining un-shipped.”
The liquidated damages were thus computed to be $1,434.88, and, on close of testimony, the jury was instructed to return a verdict for plaintiff in said amount, plus the $950.37 admittedly due, together with 15 per cent, attorney’s fees, a total recovery of $2,743.03.
In'several propositions, appellant makes the contention, (1) that jury questions were raised as to whether the written contract was ever modified or breached by it; and (2), of insufficient evidence on which to compute any amount of contract or liquidated damages, if recoverable.
The original terms of payment of the contract in suit were thirty days after each delivery. The testimony of N. H. Nicholson, president of appellant concern, discloses that later, these terms were changed to C.O.D. payments for the balance of the flour, as and when delivered. This arrangement followed Mr. Nicholson’s inability to pay for shipments in 100-barrel lots, as well as to take care of the $950 prior debt; he stating, “Ship me 50 barrels and I am willing to pay C.O.D.” It appears that flour was delivered to appellant thereafter, which was paid for by check, but around April 1, 1938, the Bakery requested delivery of 35 barrels, tendering check in payment, which was refused by the Milling Company’s warehouse agent, South Texas Grain Company, cash being demanded for the purchase price of the particular flour. Thus arose the contention by each party to the written contract, modified as just mentioned, that the terms of same had been breached by the other — appellant claiming release from liability because of appellee’s refusal to accept payment by check, and the latter
Affirmed.
