111 Kan. 214 | Kan. | 1922
The opinion of the court was delivered by
The Wichita Flour Mills Company has for several years been making a brand of flour called “Kansas Expansion.” On August 7, 1917, John C. Gaede,'who operates a bakery at Fredonia, ordered from it 150 barrels of that flour at $13.40 a barrel, to be shipped within thirty days, the order being accepted. On August 19 the buyer sent a letter stating that he canceled the order. The statement was repeated in a letter of September 2, which the seller appears to have accepted as a cancellation of the contract. The seller executed ■ an assignment of its claim against the buyer by reason of his breach of contract to Charles F. Rock, who sued him
The ground upon which the defendant gave notice of his cancellation or refusal to perform the contract was that a half car of Expansion flour, which he had begun using after its execution, had proved unfit for use- — was incapable of making marketable bread. Evidence was introduced by him tending to support this claim. The plaintiff complains of an instruction to the effect that the jury should return a verdict for the defendant if they found that the flour of that shipment was unfit as alleged, and believed that he was justified in cancelling his order for the later shipment on that account. The defendant testified that he had used at least one car of Expansion flour before that complained of and had .no fault to find with it. In response to his complaint regarding the half car shipment the Mills -company wrote that “every sack of Kansas Expansion is just like every other sack and our laboratory tests insure its being so.” To this the plaintiff replied, “Of course you claim that Kansas Expansion is the same always, but we beg to differ with you, it was alright until the last car we got.”
A buyer who has contracted for flour cannot be required to accept an article that will not make bread. (Kaull v. Blacker, 107 Kan. 578, 193 Pac. 182.) But it does not follow that one who has con-. tracted with the manufacturer for flour of a designated brand may without liability refuse to accept it because a shipment of the same brand purchased under a separate contract proves unfit for that purpose, where former shipments have been satisfactory. The breach of one contract does not justify the aggrieved party in refusing to perform another. (13 C. J. 613; Williston on Sales, 806, note 34; Brunswig v. Grain Co., 100 Kan. 261, 265, 164 Pac. 154.) The flour alleged to have been unfit for use was furnished upon a different contract from that here sued upon, and the fact that each related to the furnishing of flour of the same brand does not so connect the two contracts as to justify treating them as one for the purpose of taking the case out of the general rule. The statement in the letter of the Mills company (which the defendant contradicted) that all Expansion flour was alike cannot be deemed to establish conclusively even against the company that the flour that would have been shipped under the contract of August 7 would have been precisely like that of the shipment complained of. There seems no reason to assume that it would have resembled that rather
“Where there are two independent contracts between the same persons for the furnishing of certain goods of the same kind and quality at different times, the fact that the seller has committed a breach of the first contract by furnishing goods inferior to those required by the contract and by failing upon demand to furnish goods of the kind and quality required, does not justify the buyer in assuming that the seller also will break his second contract for a further supply of like goods, and, although the buyer may be reasonably apprehensive of a like breach of the second contract, he has no right to rescind or repudiate the second contract before it has been broken by the seller.”
We conclude that the bad quality of the flour delivered under the prior contract could afford no valid ground for the cancellation of or refusal to perform the contract here involved.
2. The plaintiff in his petition alleged that in accordance with its practice the Mills company upon the making of its contract with the defendant purchased 675 bushels of wheat at the market price of $2.88 for use in filling the order, and that by August 19 the price had declined 73 cents, so that it suffered a loss of $494.75. The instructions adopted this measure of damages in case of a verdict against the defendant. The plaintiff in his brief states that he asked permission, which was denied, to amend his petition so as "to present as an alternative measure of damages the difference between the contract price of the flour and its market value at the time of delivery. The abstract shows his request to have been merely a general one for leave to amend the petition to conform with the evidence. This, however, is not now important. If the case is to be retried it is desirable that a correct rule be adopted as to the amount of damages recoverable.
Inasmuch as the contract was to supply a brand manufactured by the seller it is obvious that the parties had in mind that the flour was not on hand — that it was to be made to fill the defend
3. If damages should be .allowed upon the theory indicated no further allowance should be made. But if the plaintiff should fail to prove the purchase and retention of the wheat he might under an appropriate amendment of his pleadings show himself entitled to the difference between the agreed price and the market price of the four at the time the contract was canceled. Because of this possibility it becomes material to inquire what should be regarded as the date of cancellation. After the defendant’s letter of August 19 further correspondence was had in which the Mills company tried to persuade the defendant to accept the flour, and it appears that the effort was not. abandoned until about September 4. The Mills company was not required to acquiesce in the defendant’s renunciation o’f the contract, but had the privilege of waiting until the expiration of the time fixed for delivery upon the chance of his changing his mind. (Milling Co. v. Scale Co., 105 Kan. 87, 181 Pac. 554, and authorities there cited.)
4. Complaint is made of an instruction submitting to the jury the question whether the plaintiff was the legal holder of the claim. It appears to b.e true as the plaintiff contends that there was nothing in the evidence to impair the effect of the written assignment by the Mills company to him, so that there was in fact'nothing for the jury to try in this regard. The court refused, to strike out matters pleaded as a separate defense and overruled objections to evidence offered under it, but finally withdrew the defense from the consideration of the jury. There is therefore no occasion to pass upon the earlier rulings.
The judgment is reversed and the cause is remanded for further proceedings in accordance herewith.