88 P. 52 | Kan. | 1906
The opinion of the court was delivered by
It is the contention of plaintiffs that the facts disclosed established, as a matter of law, that two contracts were entered into between the parties; that there was a breach of the first contract causing damage to plaintiffs; that afterward a second contract was made and carried out; and that plaintiffs by entering into the second in no manner waived their right to claim damages for the breach of the original contract. On the other hand it is claimed by defendant that the undisputed facts establish, as a matter of law, that there was but one contract, the terms of which were modified by consent of the parties; and that plaintiffs, by consenting to this modification, and their acceptance of the goods, thereby waived all claim for damages for failure to deliver under the terms of the original contract.
It was the duty of plaintiffs, upon the breach of the contract, to use diligence to procure the goods some
In Van Winkle & Company v. Wilkins et al., 81 Ga. 93, 104, 7 S. E. 644, 12 Am. St. Rep. 299, which was an action to recover the contract price of machinery sold for a cottonseed-oil mill, the court, in allowing damages resulting from its non-delivery in due time, by way of recoupment, notwithstanding the objection that receiving the machinery was a waiver of such damages, said:
“As to the damages resulting from delay, these had already been sustained when the mill was received; its reception, in so far as it affected them at all, could only hinder more from accruing; it certainly could not increase them. There was no inconsistency between reception of the machinery and retention of the claim for damages on account of delay to furnish it by the time stipulated. To hold that there was a waiver by implication would be very unreasonable.” (Page 104.)
It was held error to charge the jury, in an action to recover the purchase-price of building material in which defendant counter-claimed damages sustained by
In Hansen and Hansen v. Kirtley, 11 Iowa, 565, it was held that the acceptance of the goods after the time fixed for delivery may be considered by the jury as evidence of a waiver of the damages sustained by the delay, but that its weight must depend upon the circumstances of the case.
In the case of Industrial Works v. Mitchell, 114 Mich. 29, 72 N. W. 25, which was an action to recover upon notes given for the purchase-price of machinery, defendant sought to ‘recoup damages occasioned by delay in the delivery and for further delay resulting from defects in the machinery. It was held that the mere acceptance of the machinery by the vendee, without protest, after the time specified, and his appropriation of the same to his own use, and even the giving of
In McMaster v. The State of New York, 108 N. Y. 542, 15 N. E. 417, the court said:
“The contention that, where there is a breach of contract by one party and the other thereafter is permitted to perform the same in part, receiving the contract price for such part performance, the injured party thereby waives or releases his right to damages for the breach, has no foundation in reason or authority. It is undoubtedly the rule that where one party to a contract breaks the same, the other party may stop and refuse further performance. But instead of doing so he may perform so far as he is permitted and then claim the damages he has' suffered from the breach.” (Page 533. See, also, Orange Growers Ass’n v. Gorman, 76 Mo. App. 184, affirmed in 161 Mo. 203, 61 S. W. 820, 54 L. R. A. 718.)
We think the rule as qualified by many of the cases is correct; that the mere acceptance of a purchased article after the agreed time of delivery does not constitute a waiver of damages for the delay, unless such acceptance is accompanied by other circumstances which manifest an intention on the part of the purchaser to waive such damages. The intention of the parties controls. (24 A. & E. Encycl. of L. 1074, 1161; Ramsey et al. v. Tully et al., 12 Ill. App. 463; Belcher v. Sellards [Ky.] 43 S. W. 676.)
It is true that in none of the correspondence on the part of plaintiffs, following the refusal of defendant to deliver the goods, is there any intimation of an intention to hold defendant under the original terms of the contract. Nor, on the other hand, is there any intimation that they intended to waive a claim for damages caused by delay. It is also true that the defendant’s letter of April 7 did not stop with a refusal to deliver,
All of the evidence which consists of the correspondence between the parties is before us, and we have difficulty in arriving at the same conclusion reached by the trial court in finding for defendant. The court may have erroneously held that the acceptance of the goods was a waiver of any claim for damages for failure to deliver.
There is nothing in the additional circumstances which, in view of all that occurred, warrants the inference that the plaintiffs by acceding to the demand for cash payment intended to waive damages for the breach which had already taken place. Having accepted the order and permitted plaintiffs to rest for several months in the assurance that the goods would be delivered at a certain date, defendant, after the time expired, refused to deliver, placing the refusal upon grounds which under ordinary diligence in business should have been discovered and made known to plaintiffs long before. These circumstances seem to make it unreasonable to hold plaintiffs to have waived any actual damages suffered because they consented to the change in the terms of payment and accepted the goods. The judgment is reversed and the cause remanded for another trial.