| Ill. | Apr 15, 1861
Even if there was entire want of authority, for the purchase of the wood, by Conlogue, the act was fully ratified by the company, by using it, and paying for it, in part. If he had no authority, and the company had designed to avoid liability, they would most unquestionably have refused to appropriate it to their use. If they had not designed to ratify the contract, they should not have appropriated the wood. We are therefore of the opinion that the parties are bound by the terms of the written agreement. Had plaintiff in error complied with his agreement, he would have been entitled to recover the full amount of the contract price. Or if the company had failed or refused to keep and perform their part of the agreement', and the plaintiff in error had committed no default, he was entitled to recover damages for a breach, as he had the right to abandon the contract, and sue and recover under the common count. Or even if the road was not in default, and they received and appropriated the wood to their use, so that plaintiff in error could not be repossessed of his property, he might recover for the portion delivered by him, and used by the company. But in that case the price agreed upon in the contract would be taken as the measure of damages, but from these damages the company would have the right to recoup such amount as they had been damaged by a non-performance of the agreement by plaintiff in error.
This agreement contains no stipulation, that if the entire quantity of wood was not delivered within the specified time, that the plaintiff in error should forfeit the portion delivered, nor is there anything which indicates that any amount was fixed as liquidated damages for a breach. If there was a breach by plaintiff in error, the company could undeniably recover such damages as they had thereby .sustained. The reservation of the twenty per cent, until all of the wood was delivered, was not agreed to be liquidated damages, or to be forfeited as a penalty for a breach of contract. It seems to have been retained by the company as a sum sufficient to cover any damages they might sustain by a non-performance by plaintiff in error. The agreement of the company, was to pay eighty per cent, of the price, monthly, as the wood was delivered, the remaining twenty per cent, within thirty days, after the completion of the contract. By retaining this sum, the company had, at all times in their own hands, a sufficient sum to cover any damage they might sustain by a breach of the contract, and consequently were relieved from all necessity of bringing suit on a failure to perform by the other party, and if sued they would then have the right to recoup from that sum the damages thus sustained.
In this case the eighty per cent, had been paid, upon the contract price by the company. And this suit was instituted for the recovery of the twenty per cent, retained by them. If the defendants in error had not kept their agreement, by failing to pay the eighty per cent, monthly, as the wood was delivered, then the plaintiff in error had the right to abandon the contract, and recover for the wood delivered, at the price fixed by the agreement. Or even if the company did pay for the wood according to the terms of the agreement, and they appropriated it to their use, the plaintiff in error may recover the remainder after the defendants in error have recouped any damage they may have sustained by the breach.
The first of plaintiff’s instructions was properly refused, as it asserted that the proof of the .value and not the contract price, was the measure of the damages. It likewise failed to inform the jury that the defendant had the right to recoup such damages as they might have sustained if the plaintiff had been guilty of a breach of contract. The second instruction given for the defendant assumes, that the acceptance of the eighty per cent, on the 2nd of April, 1857, without any reference to a prior breach or rescission of the contract, estopped the plaintiff from insisting upon a breach by the company, and a right to abandon the contract. This is incorrect, as the failure, to pay for the wood at the stipulated time, months previous, may have ' induced the plaintiff to abandon the -contract, and, if so, the receipt of this money could not have the effect of reviving the contract. The third directs the jury, that if the company has paid eighty per cent, on the price of the wood delivered, that plaintiff is estopped from recovering, unless the whole amount has been delivered. This instruction is erroneous, as it altogether ignores any prior breach and abandonment of the contract, which may have occurred. If there was such a breach on the part of the company, the receipt of a portion of the money due to the plaintiff, could not be construed into a waiver of the rights which he had acquired by such a breach.
The judgment of the court below is reversed, and the cause remanded.
Judgment reversed.