Coleman v. Galbreath, Stewart & Co.

| Miss. | Oct 15, 1876

Campbell, J.,

delivered the opinion of the court.

This is a controversy between grantors in a deed of trust . executed to secure advances of -plantation supplies, money, &c., and the beneficiaries in the deed of trust, who agreed to furnish the grantors in said deed such plantation supplies, &c., during the year 1867, not to exceed $10,000, and did furnish from time to time such supplies to the amount of nearly $2,000, and then ceased and refused to furnish any more. The creditors exhibited their bill to enforce the deed of trust to the extent of their account for supplies actually advanced under the contract, and it is resisted on the ground that they were bound to advance to the full amount of $10,000, and cannot enforce the deed of trust to any extent, because they did not advance to the full amount; and for the further reason that the defendants, who made the deed of trust, and thereby contracted for supplies to the amount of $10,000, sustained damages to the extent of $7,000 by reason of the failure of the complainants to fulfil their obligation to make said advances. We hold the contract evidenced by the deed of trust not to be an entire contract, but separable, and hence apportionable, so that the parties who furnished supplies under it are entitled to enforce their security pro tanto, subject to the right of the grantors in the deed of trust to have a reduction of the demand of the creditors to the extent of any loss directly traceable to the breach of contract by the other party, and fairly within the contemplation of the contracting parties, as a natural result from such breach of contract, and which could not by reasonable effort have been avoided by the parties disappointed. The contract to furnish supplies from time to time during the year is a continuing one, and pari passu with each amount advanced, a liability accrues to the party advancing from him to whom it is made. 2 Parsons on Contracts, 517 et seq.

Applying this principle to the case at bar, it is found that the complainants are entitled to enforce the deed of trust to the extent of advances actually made, and their debtors have the right to reduce the demand according to the rule above stated. The question is, Have they brought themselves within this rule ? We think not. The record does not warrant the belief that they sustained any loss from the refusal of the complainants to advance further supplies. It does not appear that the incumbrance in favor of the complainants (appellees) was any hindrance to the obtaining of credit by the grantors from others for supplies needed, or that they were put to great trouble or expense in obtaining them from others, or that they were without other property or means as. a basis of credit. The contrary appears. It does not appear that «the conduct of the complainants in refusing further supplies was wanton and altogether causeless, nor that their determination was sudden and without notice, to the injury of the grantors in the deed. After notice to Edwin Coleman that they would not furnish more, they did furnish him a temporary supply.

The respondents stated in their answer and in evidence that, by reason of the failure of the complainants to advance further, they sustained a heavy loss ($7,000) ; but it is evident this is mere opinion, and is not sustained by the whole record.

The decree is correct, and is affirmed.