Maltby v. Eisenhauer
17 Kan. 308
Kan.
1876
Check Treatment

The opinion of the court was delivered by

Brewer, J.:

In the fall of 1873, Maltby made a contract with Eisenhauer to deliver to said Eisenhauer at his brickyard one hundred cords of wood. About the time the contract was made Eisenhauer gave Maltby an order on Ober & Bond, merchants at Salina, for goods, which was in part payment of the wood to be delivered. Goods were thus drawn on Eisenhauer’s account to the amount of $112.50 before any wood was delivered, and no goods were so drawn thereafter. After Maltby began the delivery of the wood, Eisenhauer denied thd contract-price as claimed by Maltby, and said he would not pay it. Maltby then hauled what he supposed would be sufficient to pay for the goods he had drawn, and stopped without saying anything to Eisenhauer. No request was made for the balance of the wood, and no more was delivered. Eisenhauer claimed that the wood delivered did not pay for the goods obtained on the order, and brought this action to recover from Maltby the balance. The jury gave a verdict for the plaintiff for $4.50, and judgment was entered for that amount, and the costs. To reverse that judgment this proceeding in error (is brought.

The errors complained of are in the instructions. The court charged the jury to allow plaintiff for the goods, and defendant for the wood delivered, and for $10 cash paid by him to Ober & Bond to apply on the account, and not to allow any damages for the breach of the contract, saying, that “the contract seems to be treated as at an end by both parties.” It is of this that counsel complain, and say that the court should have given certain special instructions, one of which was to *311the effect that plaintiff, by denying the contract-price, and saying that he would not pay it, was guilty of a breach of the contract, and that defendant was justified in then treating it as broken, and was entitled as damages for the breach to the difference between the contract-price and the market-value. To what extent a contract may be held to be broken before the time of performance arrives, may not be entirely settled. There are authorities which say that, if, before the time of performing the contract arrives, the promisor expressly renounces the contract, the promisee may treat this as a breach and may at once maintain an action in respect thereof. Crabtree v. Messersmith, 19 Iowa, 179; Halloway v. Griffith, 32 Iowa, 409; Hochster v. De Latour, 20 Eng. L. & Eq. 157; Damba Rly. Co. v. Xenos, 103 Eng. C. L. (or 11 C. B., n.s.) 152; 106 Eng. C. L. (or 13 C. B., n.s.) 825; L. R., 7 Ex. 218; Frost v. Knight, 5 Albany Law Journal, 235; Burtis v. Thompson, 42 N. Y. 246; Dugan v. Anderson, 36 Md. 567; Lamoreaux v. Rolfe, 36 New Hamp. 33. Several of these cases were for breaches of contracts to marry, and the courts in .many express themselves qualifiedly, and as doubtful whether the proposition was correct as applicable generally to all classes of contracts. But be the proposition ever so sound, we think it not applicable here. There was no absolute renunciation of the contract, but rather a dispute as to its terms. Plaintiff did not deny contracting for, or refuse to take the wood, or to pay therefor. He did deny that he had contracted to pay $4 a cord, and did say that he would pay but $3.50. Now it occurs to us that it would be carrying the doctrine of these authorities very far to apply it to every case of a dispute about one of the terms of a contract. More than that, we think the defendant’s own testimony warranted the court in its instructions. He testifies that after the plaintiff had notified him that he would pay but $3.50 per cord, he continued to deliver wood. He says he continued to deliver until he had delivered what he thought was enough to pay for the goods he had obtained, but he said nothing as to his intentions, and delivered wood after the notice, as before. *312And for the wood thus delivered he claims the contract-price. In other words, he abides by the contract, after the notice, so far as he deems necessary to pay for what he has received. And indeed, both parties treat the contract as continuing, for the one delivers, and the other receives the wood; and this, without any new arrangement between them, and without an intimation by defendant that he is not on his part carrying out the contract.

What price was the defendant entitled to receive for the wood delivered after the notice? Suppose wood had fallen to two dollars a cord: could the plaintiff have refused to pay more? or, if it had gone up to eight dollars, could defendant have recovered that? It seems to us not. We think that the wood was delivered under the contract, and that the contract-price must control.

Again, when the time for delivering the wood had passed, hearing that plaintiff was about to sue for the goods delivered, defendant sends to him $8.50 to make up the difference between the goods and the wood, and when plaintiff refuses to receive it defendant pays Ober & Bond $10 to apply on the account. This certainly seems inconsistent with the idea of a right to damages for breach of the .contract. He says of this, himself, that he delivered 26 cords at $4 per cord, amounting to $104; that when he found the account was $112.50 he sent the $8.50 to pay the difference, and when that was refused by plaintiff he paid Ober & Bond $10, and paid them that amount because he heard that plaintiff claimed some interest, and he wanted to avoid a lawsuit if he could. Still again, defendant testified in so many words, that he gave up the contract. This is his language: “After we had the conversation in which he said he would pay $3.50 per cord, I hauled the rest of the 26 cords because I wanted to put in wood for what I had got. I hauled no more for the reason that I did not want to take the risk of getting my pay, and so let the contract go.” Tt would seem from this that defendant had no just cause of complaint if the court held that both parties treated the contract as at an end.

*313In support of the verdict, it should be stated that plaintiff claimed that only 20^- cords of wood were delivered, and that there was a conflict of testimony as to the amount actually delivered. We think these considerations also dispose of the other questions raised in the brief of counsel, and the judgment will be affirmed.

All the Justices concurring.