89 A. 1121 | Conn. | 1914
The errors assigned relate only to the rulings of the trial court upon claims of law made at the trial, and do not present any claims for correction of the finding, although the evidence and exhibits have been certified to this court in attempted conformity with § 797 of the General Statutes. Under these conditions the findings of the trial court as made must be taken as the basis of our decision upon the questions of law presented by the assignments of error. We are not at liberty, in the absence of any assignments of error presenting claims for correction of the finding, to resort to the evidence and construct a new finding in whole or in part. Dennison v. Waterville Cutlery Co.,
The trial court held that the contract had been terminated before July 22d in consequence of the defendant's unqualified refusal to accept or pay for any more oats under the contract; and the principal question presented by the appeal is whether the court erred in so holding. There are other assignments of error, but they are founded upon the assumption that the contract remained in force and effect at the time the plaintiff sold certain carloads of oats at Worcester on July 22d *133 and 24th for the purpose of fixing the loss occasioned by the defendant's breach.
The first and third assignments of error present the claim that as a prerequisite to any recovery the plaintiff was bound to ship the oats to the place of delivery within the time limited by the contract. It is enough, without assenting to this claim, to point out that it begs the principal question in controversy by assuming that the contract remained in force until the expiration of the delivery period named therein.
The second and fifth assignments of error, which claim that the plaintiff had no right to sell the oats to any other person than to the defendant, are not only open to the same criticism, but they wrongly assume that the defendant had acquired title under the contract to the oats which remained undelivered. It is clear, however, from the terms of the contract, that the agreement was for the future sale and delivery of carloads of oats which had not then been identified, and, so far as any finding is concerned, were not (except for the two carloads accepted and paid for) thereafter appropriated to the contract by the seller. The sale of certain carloads of oats on July 22d and 24th, after the repudiation of the contract by the defendant, was for the purpose of fixing damages for the breach, and cannot be treated as an appropriation of the oats to an existing contract.
The underlying question whether the contract had been terminated, and if so, under such conditions as to entitle the plaintiff to recover damages, is directly presented by the fourth and sixth assignments of error. Upon this point the finding establishes a definite and unqualified refusal by the defendant, shortly before July 22d, to give any shipping directions or to accept or pay for any more oats under the contract. At the time when the defendant thus gave notice of an attempted *134
repudiation, the contract had been partly performed, and the plaintiff was entitled to treat the attempted repudiation, at its election, as putting as end to the contract, and to recover as damages the profit which it would have made if the contract had been fully performed. Sales Act, § 64 (Public Acts of 1907, Chap. 212); Home Pattern Co. v. Mertz Co.,
The plaintiff did treat the contract as at an end by promptly selling three carloads of No. 2 and two carloads of No. 3 oats, and crediting the defendant's account with the proceeds with a view to fixing its damages. The only possible uncertainty in the case arises from the lack of any finding that the plaintiff notified the defendant that it intended to sell or had sold the oats, or that it accepted the defendant's repudiation of the contract. Wells v. Hartford Manilla Co.,
There is no error.
In this opinion the other judges concurred.