9 Ga. App. 391 | Ga. Ct. App. | 1911
On August 31, 1909, Cary made a binding contract with the Milledgeville Cotton Company to deliver 50 bales of cotton between October 1 and November 15, 1909, at the price of 12 cents per pound. One clause of the contract provided that if Cary should “dispose of any part of his crop before the contract is filled, then the entire number of bales due under this contract shall be
"VVe think that the court erred in allowing the defendant to take advantage of his own wrongful breach of the contract. ,Under what we conceive to be a proper construction of the contract, the provision which related to Cary’s disposing of any part of his crop before he fulfilled the contract gave to the plaintiff, and not to the defendant, the right to insist upon immediate delivery of all the cotton, when that act took place. The plaintiff had the right to waive the defendant’s breach in this respect, and, according to the evidence, did so by continuing to demand the fulfillment of the contract. It may be that if the defendant had renounced the contract, and had given the plaintiff notice of his renunciation, an anticipatory breach would have occurred, of such a nature as to make the day of the renunciation the day on which the damages should be measured; but in this case no notice to the plaintiff was shown. On the general question involved, the case of Finley v. Ludden, 105 Ga. 264 (31 S. E. 180), is strongly in point. As the