69 W. Va. 380 | W. Va. | 1911
J. W. Ellison, Son & Company and the Plat Top Grocery Company, both corporations, made a -written contract by which the Ellison Company sold to the Plat Top Company 200 ear
There is another view against the defendant. It had received 123 car loads. Its repudiation of the contract would leave 77 car loads on the hands of the plaintiff, which must be supposed to have made purchases of farmers and bound itself in order to be able to comply with its contract with the Flat Top Company. Could that right be exercised when the Flat Top Company had received more than half the hay and could not return it, could not place the Ellison Company in statu quo? The fact that it could not do so is an argument against the right of rescission. ' When one party can make the other whole it is often different. '“The contract must be rescinded in toto; cannot be
But be the above holding as it may, the decision of this case is not alone governed by it. And why? Because there was no substantial breach of the contract by the Ellison Company. There was only one car having bad hay in it that was made the basis of the repudiation of the contract by the Elat Top Company. The nine cars that contained bad hay had been arranged. The parties were satisfied by mutual agreement for abatement as to them. Thereafter there was only one car containing some bad hay. It would seem unjust that this small item should allow the purchaser to annul the contract and leave 77 car loads of hay on the hands of the seller, and make it suffer a loss by having to hunt another purchaser, and sell it at a loss, as the evidence shows that when the defendant cancelled the contract hay was falling and materially fell in price. This repudiation of the contract did not take place at the opening of its execution by the Ellison Company. It might well happen that in so large a quantity of hay having to he gathered here and there from farmers, there would be some bad hay. The Elat Top
The plaintiff's two instructions complained of were consistent with the legal principles above stated, and we see no error in them. As they are long, and as the legal principles are above stated, and the case will not go back for trial, we need not insert them.
The defendant's instructions Eos. 1, 2, 3, 4 and 9 are based on the right of rescission in this case and are not good according to the principles above stated. We need not insert them at length as the legal principles have been stated. They are of great length.
The defendant's instruction No. 5 would have told the jury that if the bay already shipped did not comply with the terms of the written contract and the plaintiff had notice thereof, the defendant had right to presume that the 77 car loads thereafter to be shipped were of the same kind as those previously shipped, and it had a right to cancel the contract. In the first place, the bulk of the hay that had been shipped w^as good, and as to that that was bad it had been adjusted, and thus far the instruction did not suit the ease; but further, the fact that there had been some bad hay shipped would not justify the defendant in assuming that more would be shipped, especially as the parties had agreed as to the bad hay that had been shipped, and the subsequent shipments and the eagerness of the Ellison Company to comply with the contract as to quality would justify .the inference that bad hay would not be shipped; anyhow, it would not justify the mere assumption that the contract would
The defendant’s instruction No. 6 says that if the jury believes from the evidence that part of the hay shipped was not of the quality required, and that the hay which the Ellison Company had for shipping upon the remainder of the contract was of inferior quality, then the defendant had right to cancel the contract. Now, there was a great deal of evidence to show to the contrary. There was no evidence to justify the theory that the hay thereafter to be shipped was bad. The instruction was not apt to the evidence, and only tended to mislead from the justice of the case. The justice of the case did not demand it. .Besides that an instruction of the plaintiff, No. 2, told the jury that the hay thereafter to be furnished must be such as the contract required.
The defence claims that an instruction for the plaintiff would allow as a measure of damages a recovery on 77 car loads of hay the difference between the contract price and the market price at the dates of delivery, and that for the month of September, 1907, only four cars were shipped when seventeen should have been, and in October, when seventeen cars should have been shipped, only seven were shipped, making 23 cars shortage in those months, and that these failures were attributable to inability to get cars except in two instances. Now, in the first place, for the month of September only one car load was demanded by the contract and four were delivered. In the next place, the contract excuses for inability to get cars. In the next place, it is clearly proven that the defendant failed to give orders for shipment in several instances, though requested to do -so. Counsel for defendant say that as the defendant did not give shipping instructions for as many as seventeen cars in several months and 28 ears were behind at the time of the cancellation, the plaintiff by continuing to ship after such failure of shipping orders waived its right to require the defendant to take the cars which should have been but were not ordered during each month, and that the instructions for the plaintiff to the extent that they make no allowance for these cars are erroneous .to the extent that the failure to ship these cars was due to the omission to give orders for them. We do not see that there is any strength in this. The reason why these 28 cars were not shipped in those months was the failure of the defendant to
The defendant complains that witness Ellison was asked if the plaintiff had sold the 77 car loads of hay which it had on hand for delivery to the defendant as No. 1 timothy and No. 1 mixed hay, and was allowed to answer that it had been sold as No. 1 hay. Now, the plaintiff had right to show that those 77 cars were good hay; and we fail to see that evidence of their sale as No. 1 in the market would be inadmissible. Counsel for defendant say that such sale was res inter alios acta, that is, a transaction to which the defendant was not a party and not bound; but we think that such sale in the open market was a circumstance tending to show that the hay was good, as the plaintiff had 'right to show, though not called upon to show it, perhaps.
The same may be said as to the evidence of witness Iloge.
An assignment of error is as to witness Larrick in allowing him to say that he attempted to purchase some of the hay delivered to the Elat Top Company as No. 1 hay. This only went to prove, was only a mode of proving, that this hay was of good quality as called for by the contract. Surely there can be no solid objection to this.
The main point in this case is as to the right of rescission under the contract. These other matters touching the measure of damages and the evidence of Ellison, Iloge and Larrick are inconsequential, cutting no important figure in this case, surely not ground for reversing a fair trial on the merits of the case doing justice. People contracting ought to live up to their contracts. It would surely be contrary to justice and law to allow the Elat Top Company, after this contract had been largely executed, with honest intent on the part of the Ellison Company to honestly execute it, to break it off for some bad hay in one car out of two hundred, especially when the Ellison Company asked pardon and took that car back and offered to replace it with another car of good hay. Counsel for the defendant do not base the right of rescission on anything but the presence
We affirm the judgment of the circuit court.
Affirmed.