Aрpellant instituted this suit against appellee, seeking to recover $525 damages which it claimed to have suffered by reason of appellee having breached and canceled a contract which appellant, through its agent at Dallas, claims to have made with appellee at Kaufman, Tex., whereby on October 16, 1923, it sold to aрpellee 5,000 bushels of corn at $1.01 per bushel to be delivered in .January, 1924, and 5,000 bushels of corn at $1.01 per bushel to be delivered in February, 1924, f. o. b. Kaufman, Tex. The cause was tried to a jury аnd submitted on special issues, and on the findings of the jury and additional findings by the court judgment was rendered for appellee.
Appellant alleged that on October 16th it sold said corn fоr delivery in January and February, and that immediately thereafter it purchased 10,000 bushels of cоrn with which to fill said orders; that on October 24th it received from appellee a lettеr of cancellation, and that it did, on the 29th of October, sell said corn on the Kansas City mаrket for the highest price obtainable between the date it received the notiсe of cancellation and the date of the sale; that it was compelled to pay on the Kansas Oity market 7414 cents per bushel, including brokerage, and on October 29th sold same for 69% cents, making a loss of 4% cents a bushel, or a total of $475, plus $50 that it had to pay its agent in Texas for making the original sale.
The only testimony in the record relating to the рrice of the corn involved in this litigation was with reference to the Kansas Oity market for immediate delivery in October and for delivery in December, 1923. Appellant’s witnesses testified that at the time the contract was made it did not have the *825 corn on hand, but it immediately purсhased same for December delivery in Kansas City at 74% cents per bushel, and that it thereafter sold same for December delivery at Kansas City for 69% cents. The record shows that at the time the contract in question was entered into corn for immediate delivery was wоrth on the Kansas City market 96 cents per bushel, and for December delivery the market was shоwn to be, on October 16th, 74% cents, on October 24th, 68% cents, on October 29th, 69% cents, and on November 8th, 75% cents per bushel, and that after November Sth the corn market continued to go uр. There was no evidence offered showing what the corn market for delivery in January or February, 1924, on the Kansas City market was, and no testimony was offered to show the market priсe of corn in Kaufman, Tex., the place of delivery, at any of said'dates.
It is the well-еstablished rule in Texas that the measure of damages for failure to carry out a cоntract for the purchase of personal property under an executory contract is the difference between the contract and the market price аt the time and place of delivery. Ullman v. Babcock,
Appellee testified that at the time he purchased the corn from appellant’s agent at Dallas over the telephone it was understood that he would not be bound until he received and accepted the confirmatiоn of said sale from appellant’s office in Kansas City, Mo., that when the confirmation did come a few days thereafter it was much more onerous than the terms under which he had purchased from appellant’s agent? and that he therefore refused to acсept same. The jury found that it was the understanding between appellant’s agent and aрpellee that the contract would not be binding until the confirmation had been sent from Kаnsas City and had been accepted by appellee, and they found that the term's of sale as made by appellant’s agent and those contained in the letters of confirmation were different, and found that appellee did not purchase the corn from appellant on the terms which appellant claims. We think these issues are, supported by the testimony, and if there had been evidence of a depreciatiоn in the market price of corn on the Kaufman market, under the findings of the jury, the court was authorized to enter judgment in favor of ap-pellee.
We have examined all of appellant’s assignments of error, and same are overruled.
The judgment of the trial court is affirmed.