44 W. Va. 82 | W. Va. | 1897
- The plaintiff in error, by counsel, insists that its demurrer to the declaration should have been sustained. The declaration states that the following written contract was made between the parties:
“Romney, W. Va., May IS. 1893. We have this day sold to George Campbell Co. 1,000 tons of chestnut oak bark, 2,000 lbs. to the ton, for seven dollars and twenty-live cents (7.25) per ton; no bark to be delivered until after August 1st, except as said George Campbell Co. may direct. All bark delivered from June 1, 1893, to June 1, 1894, on their scales at Romney; bark to be in good merchantable condition, and dry, and, if not in such condition to be docked so as to make it equivalent to good and dry bark. All bark received during week to be paid for at end of same. Pancake & Co.
“We hereby accept the above terms. George Campbell Co., per T. D. Campbell.”
The declaration avers that the plaintiffs, Pancake & Co., between the 1st day of June, 1893, and 30th of September, 1893, were ready and willing to deliver to the defendant the bark, and offered to deliver the same, and the defendant refused to accept the same. The suit was broug-htfor the recovery of damages, for the breach of the contract, on 30th of September, 1893. The defendant claims that it was prematurely brought, and that the contract contemplated a ratable monthly delivery from August 1, 1893, to June 1, 1894, — an average delivery of so many cords per month, — and that the plaintiffs could not exercise the right of delivering all at once, or faster than the ratable monthly average, and could not sue for breach of contract on the 30th of September, 1893. Some counts of the
I do not think there is any ambiguity in the contract, calling for or admitting any oral evidence for its interpretation." The contract did give the defendant the right to refuse to take any bark until after August 1,1893,but gave no such right of refusal after that, since the contract imposed upon Pancake & Co. the duty of delivering the bark between 1st of June, 1893, and 1st of June, 1894, giving them the right to deliver between these dates in such quantities and at such times as they chose. The very fact that the writing gave the Campbell Company the right to refuse bark up to the 1st of August, 1893, implies the right of the other party to deliver as it chose afterwards. There is no limitation upon that light in the writing, and it isthereñex of the intent of the parties. Pancake & Co. had the rig-ht to take the entire time between 1st of August, 1893, and 1st of June, 1894, for delivery; but the other side had no right to refuse to accept bark between these dates. These considerations would overrule the demurrer, for, as the declaration alleges the offer to deliver the whole quantity, and the refusal of the defendants to accept’, it gives immediate cause of action. The plaintiff is not suing for the price of the whole quantity of bark, but for some bark delivered, and for damag-es for refusal to accept the balance, and when once the Campbell Company’ refused to go on with its contract, as the declaration alleged it did, the plaintiff could, without actual delivery or even tender of the bark, and without waiting for the 1st of June, 1894, to arrive, sue for damages. When one party refuses to complete the contract, the other can sue for consequent damages at once. James v. Adams, 16 W. Va., 245; 3 Am. & Eng. Enc. Law, 908; Johnson v. Burns, 39 W. Va., 661, (20 S. E. 686); Meredith v. Salmon, 21 Grat. 769; 1 Am. & Eng. Enc. Law, 541.
It is claimed that the court erred in allowing Pancake to be asked, after he had said that the draft of the contract was in the handwriting of Campbell, in whose hand the in-
Complaint is made that the court refused to instruct the jury that, under the contract, in view of the evidence in the case, the plaintiffs did not have the right to require defendant to receive all the bark at the time of the institution of the suit, and could not recover, unless it was shown that the pliantiffs tendered or offered to deliver the entire quantity of bark, and an offer to deliver the whole before they had a right to deliver and require it to be accepted. This instruction was properly refused. The plaintiffs admitted an indebtedness of two hundred and thirty-eight dollars for bark already delivered, and not paid for. The plaintiffs had a right to recover this, and yet this instruction told the jury there could be no recovery. Again, it virtually makes the court pass on the oral evidence; and still more objectionable is it in the fact that there was evidence before the jury to show that the plaintiffs offered to deliver, and asked the privilege of delivering, the bark, and had ample bark ready to deliver, and requested the
Complaint is also made that the court refused to instruct that the written contract called for a ratable delivery of the bark during texr months from August 1, 1893, to June 1, 1894, aird that on the 30th of September, 1893, when the suit was brought, the plaiirtiffs had no right to insist on the defendant’s taking more than ninety five cords, and could not, on account of defendant’s refusal to accept the baidt, recover more than the loss on ninety five cords. Under my construction of the coirtract, it did not call for a ratable monthly delivery. We may just as well say it called for a daily or a weekly delivery. No periodical delivery is specified in it, and therefore this i-nstxuiction was a radical misconstruction of that contract; and, the defendant having- no right to refuse to accept, his refusal was a cause of action on the 30th of September, 1893. I see no reason to arrest the judgment or to grant a new trial. It is useless to discuss the evidence under this head. I think it plainly justifies the verdict. Judgment for the plaintiffs affirmed.
Affirmed.