171 Ky. 783 | Ky. Ct. App. | 1916
Opinion of the Court by
Be versing-.
Tbis is tbe second appeal in tbis case. Tbe first appeal was decided March 23, 1915, tbe opinion being re
It is alleged in the petition that the lot of tobacco consisting of 11,770 pounds, first mentioned, was sold by appellants to appellee at the agreed price of 14 cents per pound and that for the remaining lots of tobacco appellee agreed to pay appellants the original cost price plus cost of handling, and a “nice” or reasonable profit thereon, but that appellee repudiated the contract, declined to take any of the tobacco and it was sold by appellants on the market at Louisville at a loss to them. Appellee’s answer traversed all the material allegations of the petition.
On the first trial the circuit court, at the conclusion of the evidence introduced by each of the parties, sustained the appellee’s motion for a peremptory instruction, by which a verdict was directed in its favor. On the first appeal we held that the alleged contract as to the second, third and fourth lots of tobacco was so uncertain and indefinite in its terms as to be incapable of enforcement; but with respect to the first lot it is in the opinion said:
“As to the first lot, the 11,770 pounds, the evidence sufficiently establishes an executory contract of sale of that lot at the price of fourteen cents per pound, and the buyer’s repudiation of the contract. In such case, the measure of damages is the difference between the contract pricé and the market value at the time and place .of delivery. Marshall v. Piles, 3 Bush 249; Miller v. Burch, 19 R. 629, 41 S. W. 307; Singer v. Cheney, 21 R. 550, 51 S. W. 813; Sanders v. Bond, 23 R. 2084, 66 S. W. 635; Bell v. Hatfield, 121 Ky. 560, 28 R. 515, 2 L. R. A. (N. S.) 529; Newton v. Bayless Fruit Co., 155 Ky. 440.
The ti’ial, following the return of the case to the court below, resulted in the following verdict, signed by ten of the jury: “We, the jury, find for the defendant as set out in Instruction No. 3.” Appellants’ dissatisfaction with that verdict and the judgment entered thereon' led to the present appeal. We have been unable to discover from our reading of the record that the evidence introduced on the last trial differs in any material respect from that heard on the first. Some of the witnesses were perhaps more elaborate on the last trial in certain particulars than on the first, but in its essential features the evidence, considered as a whole, was substantially the same on the two trials. Without discussing’ it in detail, we think it conduces to establish the facts asserted by the opinion on the first appeal, viz.: (1) That there was a contract of- sale between the parties as to the 11,770-pound lot of tobacco at the price of 14 cents per pound; (2) that “the time of delivery according to the contract was the close of the sale season at Lawrenceburg and Lawrenceburg was the agreed place of delivery;” (3) that there was only one sale day at Lawrenceburg alter March 3, 1912, the date of the contract, and such sale day was on March 16th; (4) that appellee ‘ ‘ did not definitely .repudiate the contract until March-30, 1912.” We think it further appears from the evidence that appellee had no one at Lawrenceburg to represent it on the 16th day of March, and while its agent, Blackwell, was in Lawrenceburg on March 23rd for about an hour and made some examina
“Mr. J. W. Blackwell,
“Agent R. J. Reynolds Tobacco Co.,
“Lexington, Ky.
“Dear Sir:
“I beg to advise that I will be in Lawrenceburg on Saturday morning and shall expect you to meet me there and receive the tobacco which Mr. C. C. Gaines and I sold you some time since, in accordance with our agreement and understanding.
“Ypurs truly.”
Replying to that letter Blackwell wrote Sea, in substance, that he would not come to Lawrenceburg and that if Sea wanted to see him he would have to come to Lexington.
The foregoing evidence strongly conduced to prove that appellee intended to repudiate the contract and did do so, and also that appellants were all the time ready and willing to perform the contract by the delivery on their part of the 11,770 pounds of tobacco. It is, however, insisted for appellee that the weighing as well as a tender 'of the tobacco was necessary. The evidence for appellants shows that the tobacco had, as known to appellee, been weighed by appellants and does not show
Here there was a sale of the tobacco to be delivered on a certain day or within a reasonable time thereafter. The purchaser was not at the place of delivery at the time fixed for the delivery, nor was there any notice to the seller of the day when the purchaser would be ready to receive the tobacco. On the other hand, the seller did, within a reasonable time after the day fixed for the delivery, notify the purchaser of his willingness to make delivery of the tobacco according to the contract and request the presence of the purchaser for that purpose at a time indicated for making the delivery; but there was a failure upon the part of the purchaser to be present that he might receive the tobacco. Under such circumstances a formal tender of the tobacco by the seller cannot be regarded as a condition precedent to a right of action against the purchaser for a breach of the contract. In Bell v. Hatfield, 121 Ky. 560, there was a breach of contract for the sale of cattle, the contract providing that the seller was to receive á cents a pound for the cattle upon delivering them some miles distant from the place of sale, on or about September 1st, “with a few days to play on.” The purchaser failed to notify the seller of a time when he would receive the cattle. They were not delivered nor was there a tender of them by the seller. The action was brought by the latter to recover of the purchaser the difference between the contract price and the market value of the cattle on or about September 1st, the time when they were to have been received. In the opinion it is said:
./ ‘ ‘ The controlling question is whether a tender of the cattle by the seller was necessary to entitle him to main
In the instant case the tobacco was to be delivered at the place of sale and there appears to be no provision of the contract requiring appellee to notify appellants of the day upon which it would receive and pay for the tobacco or that required appellants to give appellee notice of the day upon which they would be ready to deliver the tobacco; but, while this is true, appellants could not well have made , a tender of the tobacco on the day fixed by the contract for its delivery, when ap
The doctrine as to waiver of tender is. thus well stated in 35 Cyc. at page 171:
“Waiver of Tender. No tender is necessary when the contract has been definitely repudiated by the buyer, as by the refusal to accept delivery, if tendered, or notice to the seller that the buyer is unable to accept and pay for the goods.” 35 Cyc. 168-169. Turner v. Johnson, 7 Dana 436; Schwartz & Co. v. Woldert Gro. Co., 151 Ky. 748; Bolen v. Jenkins, 167 Ky. 295.
In view of the evidence, appellants’ complaint that the trial court did not properly instruct the jury is well founded. The instructions as given were misleading and the language of the verdict shows that the jury made its finding for appellee upon the sole ground that there had not been a tender of the tobacco by the appellants as defined by instruction No. 3. We are not disposed to object to the form of the three instructions given by the court, but are clearly of the opinion that they only stated the law in part. On another trial of the case the court, in addition to the instructions given on the last trial, should instruct the jury as follows:
“If you believe from the evidence that there was a sale by plaintiffs of the tobacco to defendant as predicated in instruction No. 1, and that it was to be delivered and paid for at the close of the sale season at Lawrence-, burg and that plaintiffs on the day the sale season closed,-
The above instruction was, in substance but in different form, asked on the last trial by appellants and refused by the court. The other instructions asked by appellants were properly refused.
A material issue in the case was as to the amount of damages sustained by appellee’s violation of the contract, with reference to which there was a contrariety of evidence, but we think the measure of damages was correctly given by the court in instruction No. 2.
For the errors indicated the judgment is reversed and cause remanded for a new trial consistent with the opinion.