5 F.2d 278 | 6th Cir. | 1925
This suit is brought by plaintiffs in error to recover damages for defendant’s failure to deliver coal under two contracts between defendant, as the seller, and United Coal Mines, Inc., as the buyer. The first contract was made June 29, 1922, and provided for the purchase and sale of 300 cars (approximately 15,000 tons) of Elkhorn mine run coal at $3.30 per ton, to be delivered at the rate of 100 cars per month during June, July, and August. The other contract, made July 8, 1922, called for 150 cars (approximately 7,-500 tons) of Williamson coal at the same price, deliveries during substantially the same period, and to be completed October 5, 1922. Each contract provided for deposit by the buyer of $1 per ton, viz. $15,000 under the first contract and $7,500 under the “second, to be applied at the rate of,$l per ton of coal as delivered — the remaining $2.30 per ton to be paid thereafter. The deposits were duly made. There were delivered during the contract period 96 cars under the first contract and 54 cars under the second contract. Later 45 cars were delivered under the first contract and 8 under the second. Plaintiffs, who sue as assignees of the United Coal Mines, Inc., claim that these later deliveries, aggregating 53 ears, were made to apply, at $3.30 per ton) • upon plaintiffs’ damages, reducing the net amount claimed to practically $48,000.
Defendant denies liability for delays in delivery on the grounds, first, that the failures to deliver were caused by mining strikes and other contingencies not under their control and claimed to be covered by the contracts of purchase and sale;
1. Plaintiffs’ main complaint is that the court’s charge permitted the jury to find against plaintiffs’ claim on the ground that damages for a breach of the contract had been waived by plaintiffs by proceeding with the contract as if the breach had not occurred. The court, in summing up, said: “If a party does not rest upon an alleged breach by the other party, but continues the performance of the contract, and both sides go on as if there had been no such breach, such breach cannot be made the predicate of either recovery or defense, because, having been waived, it is as if it had never happened.” This instruction was given in response to a request by the jury that previ
Passing the question whether the defense of wajver was precluded by failure to plead it, as well as the question whether plaintiffs' exception was broad enough to challenge the definition applied by the court, the correctness of which plaintiffs deny,*
■ The witness also testified that on October 17, 1922 (the Williamson Company failing to appear), he again went over plaintiffs’ account with the defendant, which was checked over by defendant’s representative, and that the claim sued upon, viz. about $58,000, was the same as the statement cheeked and verified in that conference with defendant’s representative. While that representative denied that any agreement was made that plaintiffs were damaged, and that coal was to be shipped on account thereof, we find nothing fairly indicating any suggestion of waiver of plaintiffs’ claim. On the contrary, defendant’s representative admits that, after a conversation with one of the plaintiffs, inferably after one of the alleged October interviews, he made claim against the Williamson Company that the market values were much in excess of the $3.30 per ton, and began suit against that company.
We are constrained to think that, upon this record, the 53 cars delivered to plaintiffs after October 10th
2. Plaintiffs complain that verdict was not directed in their favor. We think there was sufficient evidence to justify submitting to the jury the defenses other than waiver, to which reference has been made.
For the error in submitting the question of plaintiffs’ waiver, the judgment of the District Court is reversed, and a new trial ordered.
Defendant asserts in this connection that at the time of making the first contract, by telephone, it advised plaintiff that, on account of the small margin (10 cents per ton) on which it handled the coal, it was not to be held for any liability if the mines from which defendant was to get the coal failed to deliver.
Acceptance of performance after breach may operate as a .waiver of the right to treat the contract as terminated by the breach, but is not (per se) a waiver of the right of action to recover damages therefor. Frankfurt, etc., Co. v. William Prym Co. (C. C. A. 2) 237 F. 21-28, 150 C. C. A. 223, L. R. A. 1918A, 602; 5 Page on Contracts (2d Ed.) par. 3067; 2 Williston on Contracts, § 703.
The market price on September 30th and on October 5th was $5.50. Later prices do not directly appear, although it is open to inference that the market in the latter part of October was close to the contract price of $3.30.
It happens that the market price at the end of July ($8.50 to $9.50) was much higher than at the end of either of the other months of the contract period.