24 Ind. App. 521 | Ind. Ct. App. | 1900
Appellant and appellee Caylor agreed in writing February 22, 1896, that appellant would furnish Caylor 500 tons of ice between April 1st and May 1, 1896, at $1.50 per ton; 600 tons per month for May, June, July, August, and September, 1896, at $2.00 per ton; 500 tons between October 1st and November 1, 1896, at $1.50 per ton, — all ice to be taken from platform at ice-plant connected with appellant’s abattoir, and paid for monthly on or before the 15th day. February 25, 1896, Caylor assigned the contract to his co-appellees, the City Ice Company, the Artificial Ice and Cold Storage Company, the Polar Ice Company, the W. S. Budd Ice Company, and the Holt Ice and Cold Storage Company, which assignment was accepted by appellant, who agreed to accept Caylor’s assignees, in lieu of Caylor, as parties to the contract. April 4, 1896, appellant agreed with Caylor to sell hfm 100 tons of ice in addition to the 500 tons sold, to be delivered during April, at $1.50 per ton, and in consideration of Caylor’s acceptance of this proposition appellant agreed not to sell or deliver ice to any one else in Indianapolis during the existence of both contracts, without Caylor’s consent. This contract was assigned and accepted as the former contract. All ice was delivered to Caylor’s assignees, and the bills paid by them. During April appellant delivered 431 tons and 1,900 pounds, and on May 16th they paid appellant the contract price df 600 tons, to wit, $900; but they did not then definitely know the capacity of appellant’s ice-machine, nor did they know but that appellant manufactured in that month the full amount of 600 tons. No such representation was made to them, and the payment
It is true the court finds that for the month of April, Oaylor’s assignees received only 431 tons, but paid the full contract price of 600 tons; but it is also found that they did not then definitely know the capacity of appellant’s ice-machine, nor did they know but that he had manufactured the full 600 tons. During May the amount actually called for, delivered, and paid for was 586 tons 400 pounds. During June the amount delivered was 548 tons 800 pounds, and on July 1st a bill was presented demanding payment for 600 tons less eighteen tons appellant had used himself; and appellant was then notified that appellees would pay only for ice actually delivered, and the June bill was paid on that basis, and thereafter appellant rendered bills only for ice actually delivered. It is true that the full contract amount for April was paid for, and a construction was then put upon the contract by the parties; but an explanation for that is given? and it appears that the parties impliedly placed a different construction upon it for May, and expressly did so for June. Even if the contract had been uncertain and ambiguous, the parties gave it two different constructions, and apparently followed the construction last given.
When the language of a contract is indefinite or ambiguous a court should adopt the construction and practical interpretation which the parties themselves have placed upon it, and enforce that construction. Fidelity, etc., Co. v. Teter, 136 Ind. 672; Olds Wagon Works v. Coombs, 124 Ind. 62; City of Vincennes v. Citizens, etc., Co., 132 Ind. 114, 16 L. R. A. 485; Vinton v. Baldwin, 95 Ind. 433; Bates v. Dehaven, 10 Ind. 319.
In Morris v. Thomas, supra, it was said: “If there was any obscurity, uncertainty, or ambiguity in the terms oí this contract, then the acts of the parties in connection therewith, as suggested by appellant’s counsel, would furnish valuable aid in the construction of the contract. But where, as in this case, the terms of the contract are plain, intelligible and free from doubt and uncertainty, rules of construction are unnecessary and of no possible service. In such a case it is certainly not the province of the courts, by any rules of construction, to make another and entirely different contract for the parties from the one they made for themselves.” Diamond Plate Class Co. v. Tennell, 22 Ind. App. 132.
The finding shows that the contracts between appellant and Caylor were assigned to Oaylor’s co-appellees and that appellant consented and agreed thereto, and accepted them in lieu of Caylor as parties to the contract. According to the rule declared in Hoffa v. Hoffman, 33 Ind. 172, this shows a valid novation. See also Millard v. Porter, 18 Ind. 503; Hill v. Warner, 20 Ind. App. 309.
The contract was one of sale, by which appellant agreed to sell, and appellees to take, so much ice per month. The suit is not for ice delivered, but for damages from appellee’s failure to take ice as agreed; and the question is not appellant’s willingness to deliver it, but his readiness to do so. It had a market value, which the findings show was at no time less than the contract price, and, before appellant can recover the contract price, he must have either delivered the property to appellant, or have clone such acts
The general rule is if a contract to deliver goods is broken, the measure of damages is the difference between the contract price and the market price of the goods at the time and place the contract is broken. Rahm v. Deig, 121 Ind. 283; Dwiggins v. Clark, 94 Ind. 49, 48 Am. Rep. 140. And if a contract to accept and pay for goods is broken by the vendee’s refusal to accept them, the measure of damages is governed by the same rule. Fell v. Muller, 78 Ind. 507; Beard v. Sloan, 38 Ind. 128; Ganson v. Madigan, 13 Wis. 75; Thompson v. Alger, 12 Metc. 428; Allen v. Jarvis, 20 Conn. 38; Chitty Contr., (11 Am. ed.) p. 1331; Gordon v. Norris, 49 N. H. 376; Northrup v. Cook, 39 Mo. 208; Neal v. Shewalter, 5 Ind. App. 147; Ridgeley v. Mooney, 16 Ind. App. 362; Browning v. Simons, 17 Ind. App. 45; Dill v. Mumford, 19 Ind. App. 609.
It is true, the contract provides that appellant should sell ice to no person other than appellees during the time specified. But this bound appellant only so long as appellees complied with the contract, and received the ice delivered or tendered; for, if he delivered it, or offered to deliver it, and they refused to receive it, appellees could certainly not be heard to object if he sold it to other parties. It is well settled that it is the duty of a party subjected to injury from a breach of a contract to make reasonable exertion to render the injury as light as possible. _ If, through his own negligence or wilfulness, his damages are enhanced, and such damages could have been avoided through reasonable exertion, the'increased loss is his own.
Judgment affirmed.