187 Wis. 34 | Wis. | 1925
This is an appeal from a judgment of the superior court of Dane county awarding plaintiff and respondent damages against the defendant and appellant for defendant’s breach of two contracts of purchase of certain pig iron from the plaintiff. The only question presented is whether the court applied the proper measure of damages.
On August 5, 1920, the parties entered into a contract whereby plaintiff agreed to sell and deliver to the defendant 150 tons of pig iron at $46.25 per ton, delivery to be made f. o. b. cars at Birmingham, Alabama, and shipments to be made during the last quarter of 1920. The defendant agreed' to pay therefor $46.25 a ton “cash thirty days from average date of monthly deliveries.” The contract also provided that “each month’s deliveries .shall be treated as a separate contract, independent of deliveries for other months.”
Another contract of exact tenor was entered into between the same parties the same day for the sale and delivery of 150 tons of pig iron during the first quarter of 1921. The plaintiff delivered fifty tons under this contract' in the month of October. On October 11, 1920, the defendant notified plaintiff not to make any further shipments on these contracts until defendant notified plaintiff, as defendant then had all the iron on hand it could handle at that time. Plaintiff acknowledged receipt of this letter and expressed the hope that it would be advised by the 1st of November as to what time in November defendant would be prepared to take care of the November quota. On November 9th plaintiff, having heard nothing from the defendant, wrote defendant that “we will appreciate your advice by return mail as to just what time during the month of November it will be satisfactory to you to have us make shipment of this tonnage.” Plaintiff heard nothing from defendant until November 22d, when it received this telegram: “Car Santa Fe 29432 arrived today. Cannot accept it. This shipment made without order from us. We refuse to accept any further shipment on two contracts. Wire Northwestern Railroad disposition of car on track to save demurrage.” It appears that this car
The court held that under the first contract the date of delivery was December 31st and that under the second contract the date of delivery was March 31st, and awarded plaintiff as damages the difference between the contract price and the market price of pig iron at Birmingham on those dates. As already stated, the only question presented is whether this was the proper measure of damages.
It is a general proposition that where the buyer of goods under an executory agreement breaks the contract by refusing to accept the goods, the measure of damages is the difference between the contract price and the market price of the goods at the time when and the place where the contract should have been performed. 2 Williston, Sales (2d ed.) § 582; Schuenemann v. John G. Wollaeger Co. 170 Wis. 616, 176 N. W. 59; Gwin v. Hopkinsville M. Co. 190 Ala. 346, 67 South. 382; Crandall-Pettee Co. v. Jebeles & Colias C. Co. 195 Ala. 152, 69 South. 964; sec. 121. 64, Stats. The only serious question presented by the facts of this case is when were the goods deliverable. The contracts merely provide for 150 tons of pig iron during the last quarter of 1920 and 150 tons during- the first quarter of 1921. The contracts plainly contemplate that delivery shall take place from
Appellant also contends that the breaches occurred on November 22d when the defendant telegraphed the plaintiff that it would not accept any further shipments under the two contracts, and if the breaches did not occur at that time the second contract was certainly breached on January 14th when defendant’s attorneys wrote plaintiff that the defendant would not accept any further shipments of iron under the contracts. These notifications were repudiations rather than
“The rule has been broadly laid down in England that in case of notice to a promisee of a promisor’s intention not to perform his contract, 'the promisee, if he pleases, may treat the notice of intention as inoperative, and await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of nonperformance.’ ” See, also, Washburn-Crosby Co. v. Kubiak, 175 Wis. 291, 185 N. W. 162.
This rule is supported by well-nigh universal authority in this country and, we think, is recognized in the Alabama cases already cited. Even though the communications of November 22d and January 14th constituted repudiations of the contracts on the part of defendant, plaintiff chose to keep the contracts alive, and the measure of damages appl.'- ~ble to the situation is not at all affected by the repudiations of the defendant. The plaintiff is entitled to the difference between the contract price and the market price of the goods at the time and place of delivery. The trial court correctly applied this rule, and the judgment cannot be disturbed.
By the Court. — Judgment affirmed.