90 So. 116 | Miss. | 1921
delivered the opinion of the court.
(After stating the facts as above.) Appellee’s contention is that it was excused from delivery in January and
These principles apply with equal force to the stipulation in the contract contained in paragraph 7 of the “conditions” which provided that “specifications” should be furnished appellee by appellants not later than January 1, 1917, and in default thereof it should be optional with appellee as to whether it would carry out the contract. Appellant’s testimony tended to show that this stipulation was complied with by it; but, if it was not, the correspondence between the parties clearly shows that the failure of appellants in that respect was condoned by the appellee. For illustration: In appellee’s letter to appellants of June 22, 1917, it acknowledges the receipt from appellants of shipping instructions for the carload of oysters, and states, “To all of which we will conform,” and in its numerous letters to appellants, offered in evidence, there is not an intimation that it had or intended to take advantage of any failure of appellants to comply with that stipulation.
It is contended on behalf of appellee that the agreement postponing delivery and waiving the time within which specifications were required to be furnished appellee by appellant amounted to a new contract which discharged the old contract, and, there being no consideration for the new contract, appellee was relieved from performance. As we have seen, the changes referred to did not make a new contract of the old. They were merely modifications of the written contract of November 20, 1916, agreed to by both parties. There was only one contract. The original consideration was sufficient under the law to support such modifications; and, if further consideration were needed,
It follows from this view of the law that the trial court erred in ruling out- the correspondence between the parties, as well as that between the appellants and appellee on the one hand and Taylor, the latter’s broker in San Francisco, on the other, which tended to show such modifications of the contract. Appellee contends that it was excused from delivery under paragraphs 1 and 6 of the “conditions” attached to the contract, because prior to March 1, 1917, the limit of time fixed for delivery in the contract as originally written, at no time did appellee have the required amount of oysters packed to fill appellee’s contract, nor could they be procured in the ordinary course of its business, filling the contracts of its customers “in rotation,” as it claimed it had a right to do; and appellee’s testimony was addressed to justifying its failure to deliver Avithin that time. The fault of that position is that the contract as modified by the correspondence called for delivery by the appellee at any time not later than the postponed date of delivery, March 1, 1919. If delivery is delayed by agreement of the parties, the postponed delivery date simply becomes part of the original contract. The appellants offered testimony to show that the appellee could have delivered the oysters under the contract. The larger part of this evidence was ruled out by the court, Avhich was error.
The measure of damages in this case is the difference in the contract price of the oysters in question and their market price at the postponed date of delivery, March 1, 1919. If delivery is postponed by agreement of the parties, the market value at the time to which delivery is postponed is taken as the criterion. Summers v. Hibbard, 153 Ill. 102, 38 N. E. 899, 46 Am. St. Rep. 872; Crescent City Mfg. Co. v. Slattery, 132 La. 917, 61 So. 870; 24 R. C. L. section 337, p. 73; Covington Mfg. Co. v. Ferguson, 204 Ala. 192, 85 So. 726.
Reversed and remanded.