102 Neb. 249 | Neb. | 1918
Plaintiffs are grain dealers in Baltimore, Maryland. Defendant is a grain dealer and operates .an elevator in Omaha, Nebraska. This is an action to recover damages aggregating $37,662.05 for failure of defendant to ship wheat to Baltimore according to the terms
The first assignment of error relates to the measure of damages. Defendant did not appeal from the judgment against it for $14,014.61. It follows that the sale of wheat, the defendant’s breach of contract and the liability for resulting damages are established by the record. The contracts pleaded in the petition were made by the parties. Plaintiffs bought the wheat for export from Baltimore. An embargo on shipments for that purpose, effective from August 4, 1914, to August 19, 1914, prevented defendant in the meantime from getting cars. For this condition plaintiffs were in nowise responsible. Defendant wired them August 15, 1914, that it would cancel the purchase of the unshipped wheat under the contracts of June 24, 1914, July 8, 1914, and July 11, 1914. Cancelation of the contract of July 6, 1914, was wired to plaintiffs August 17, 1914. Plaintiffs1 did not consent to the cancelations, but waited until the shipping periods had expired and bought wheat on the open market to take the place of what defendant had agreed to, but did not, ship. The embargo prevented shipments during a part only of the shipping periods. It did not interfere with shipments after August 19, 1914. Defendant had until August 31, 1914, ■ to complete the shipments under the contracts pleaded in the first, third and fourth counts, and until September 30, 1914, under the contract pleaded in the second count.
When prices rise after sale and before delivery, the seller is exposed to a temptation to evade the purchase, if cancelation can be accomplished without a full measure of responsibility for resulting damages. The buyer is exposed to .a similar temptation when prices begin to fall. Regardless of self-interest, honesty and fair-dealing require each party to respect his obligations. A seller of undelivered grain cannot arbitrarily shorten the stipulated period for delivery, and thus take the fruits of the buyer’s bargain, without incurring liability for resulting damages. The rule generally applied was stated by this court as follows:
“The measure of damages for a breach of a contract by the vendor of personal property failing to make delivery to the vendee, generally, is the difference between the contract price and the fair market value of the property at the time and place specified in the agreement for delivery.” Graham v. Frazier, 49 Neb. 90.
Plaintiffs had a right to make continuous demands for shipments of undelivered grain as long as the stipulated shipping periods lasted, though defendant gave notice ,of nonperformance. After plaintiffs refused to recognize the cancelations, defendant was free to ship the grain sold, and in that event to collect the contract prices. Under the circumstances, a cause
There was therefore error in the instruction that the measure of recovery in the present case was the difference between the contract prices and the market prices within a reasonable time after defendant notified plaintiffs that it would not comply with the contracts.
A ruling which permitted a grain dealer to testify that he could buy “option wheat” below the market price for “cash wheat” is challenged as erroneous. This assignment is sustained. The prices of wheat on the open market at the expiration of the shipping, periods were material inquiries. On that issue plaintiffs introduced the “Daily Bulletin,” a publication accepted by the trade or by grain dealers generally as a standard or as an authentic record on the subject. In making their contracts for future deliveries the parties contemplated the usual and recognized sources of knowledge for determining prices on the open market. Proof of individual transactions or bargains by a dealer should have been excluded. Chicago, B. & Q. R. Co. v. Todd, 74 Neb. 712; Sisson v. Cleveland & T. R. Co., 14 Mich. 489.
For the errors pointed out, the judgment is reversed and the cause remanded for further proceedings.
Reversed.