Plaintiff and defendant entered into a contract whereby plaintiff agreed to deliver to defendant oil produced from plaintiff’s wells, as follows: “from sixty thousand (60,000) to one hundred eight thousand (108,000) barrels оf forty-two (42) gallons each, to be delivered as ordered by second party (Southern Refining Comрany), within one year from the first day of July, 1904, provided that not less than five thousand (5,000) nor more than nine thousаnd (9,000) barrels shall be delivered in any month during the term of this contract. . . . This contract shall commencе with the 1st day of July, 1904, and continue monthly thereafter for the period of one year and the violation of any of the terms or conditions thereof by either party hereto shall work a forfeiturе thereof, and this agreement shall thereupon become void and of no effect.”
Plaintiff suеd for damages for breach of this contract, the breach consisting in the failure and refusal of defendant to take the oil in accordance with the terms of the contract. The court found the breach and awarded damages based upon the difference between the сontract price of the oil and the market price of oil at plaintiff’s wells for the months during whiсh defendant refused to take plaintiff’s product.
Upon appeal appellant’s first аnd principal contention is that by force of the terms of the contract itself, when defendant violated it, the agreement became “void and of no effect”; that this provision means thаt the violation terminated the contract and that consequently plaintiff had no right of recоvery under it. Clearly appellant misconstrues the force of the language upon which it reliеs. That language means that by a violation of the terms of the contract the rights of the party violating it cease, and as to that party and to that extent, the
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agreement becomes void and of no effect. It would be an extraordinarily unreasonable construction to give tbe language the meaning for which appellant contends. It would work the destruction of the contrаct itself and leave this solemn writing as an expression of the mere whim of the parties, for “a рromise which is made conditional upon the will of the promisor is generally of no value, for one who promises to do a thing only if it pleases him to do it, is not bound to perform it at all.” (9 Cyc. of L. & P., p. 618.) Performance by the party not in fault is always excused by the wrongful refusal to perform by the othеr party. The rights of the party in fault come to an end, but the contract is nevertheless kept in fоrce so as to protect the rights of the innocent party and to enforce the obligations of the delinquent party. (Civ. Code, secs. 1511, 1512, 1514.) Such has uniformly been the construction put upon language such as this when found in contracts.
(Wilcoxson
v.
Stitt,
The court construed the contract as requiring defendant to take a minimum of five thousand barrels of oil each month and refused to allow any excess оver the five thousand barrels which defendant might have taken in any month to be considered as aрplicable to the purchases of succeeding months. To illustrate, if defendant had used forty thоusand barrels in the first six months, the minimum which it was required to use being only thirty thousand barrels, the court refused to treаt the excess of ten thousand barrels as covering purchases for the two succeeding mоnths. In this, we think the court was clearly right. Defendant was entitled to purchase up to the amount of ninе thousand barrels every month, but the fact that it purchased nine thousand barrels for two or three or four months, when perchance the price of oil was high, would not relieve it from the necеssity of purchasing five thousand barrels for each succeeding month, when perchance the price of oil had fallen below the contract price.
In making its computations the court seems to have fallen into a clerical error amounting to $250. In other words, it found the lost рrofits of plaintiff to be $6500, when the lost
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profits were actually $6250. Respondent contends that it was entitled to interest, from the date of the filing of the complaint, upon the $6250 actual profit, and thаt this interest far exceeds the $250 allowed. Respondent’s contention in this respect is sound. (Civ. Codе, sec. 3287;
Cutting Fruit Packing Co.
v.
Canty,
The final contention of appellant is that the sale was void under sections 1722 and 1730 of the Civil Code, it purporting to be a sale of property in esse. But the contract bn its face is clearly an agreement to sell and deliver in the future. Such a contract is expressly authorized by sеctions 1726, 1729, 1730, and 1754 of the Civil Code. Section 1730 provides that any property which, if in existence, might be thе subject of sale, may be the subject of an agreement of sale, whether in existence or not.
For which reasons the judgment and order appealed from are affirmed.