Levy v. Sayle, 52 Ark. 246

Levy v. Sayle

52 Ark. 246 | Ark. | 1889

Cockrill, C. J.

1. Mortgages: To secure future advances: recoupment. Where a mortgage is executed to'secure-to the mortgagee the price of goods thereafter to be furnished uPon ^e demand of the mortgagor, and the mortgagee violates his contract after it is partially performed, the rule governing the rights of the parties under the contract is fully and concisely stated by Judge Campbell, of Mississippi, in the following language : “We hold the contract evidenced by the deed of trust not to be an entire contract, but separable, and hence apportionable, so that the parties who furnished supplies, under it are entitled to enforce their security pro tanto, subject to the right of the grantors in the deed of trust to have a reduction of the demand of the creditors - to the extent of any loss directly traceable to the breach of contract by the other party and fairly within the contemplation of the contracting-parties, as a natural result from such breach of contract, and which could not by reasonable effort have been avoided by the parties disappointed.” Coleman v. Galbreath, 53 Miss., 303. See Grisard v. Petty, 45 Ark., 117.

2. Same: The question here is, do the allegations of the defendant’s answer bring him within the rule ? The contract itself furnishes-no guide for the measure of damages, and the recoupment by the defendant could be only nominal and inappreciable in the-absence of allegations of actual, substantial loss arising from-the violation of the contract. Ry. v. Mudford, 44 Ark., 439.

It is not alleged that the same class of goods which the plaintiff had agreed to furnish, could not have been purchased in the market; or that the mortgage, which the defendant had executed to the plaintiff, had hindered or impeded him in getting credit from others for such goods; or, that he was. without means, or other property to furnish a basis of credit, to purchase them; nor is any other fact alleged upon which a recovery of more than nominal damages could be sustained. Moreover, the answer alleges what was, probably, a sufficient excuse on the part of the plaintiff for refusing to furnish additional goods,

Affirm.