90 Neb. 104 | Neb. | 1911
The point of contention in this case is whether the plaintiff is suing for a balance due on a contract of sale or for damages for its breach. The defendant filed a general demurrer to the petition, and, refusing to plead or answer over when its demurrer was overruled, comes here on appeal to reverse a judgment in the plaintiff’s favor.
The defendant relies upon Backes v. Schlick, 82 Neb. 289, wherein we held that ordinarily either party to an executory contract has the right by explicit notice to the other to stop performance, subjecting himself to such damages as will compensate the other party for being prevented from executing the contract; that an action by the seller will not subsequently lie to recover the contract price, but his sole remedy is an action for damages for a breach of the contract; and that if the petition, in an action to recover the contract price, discloses such notice before the time for performance, it does not state a cause of action.
The plaintiff contends that it states a cause of action for damages. The pleader states the minutest details of the transaction, and pleads some extrinsic facts and various conclusions not necessary to be stated here. The pleader discloses that the plaintiff’s place of business is in the state of Washington and the defendant’s place of business is at Kearney, Nebraska, and that the defendant on the 1.7th of October, 1907, purchased three car-loads of shingles from the plaintiff to be delivered f. o. b. cars at Kearney for the agreed price of $3.56 a thousand. The correspondence between the litigants with respect to routing the shingles is pleaded, and the delay incident to following the defendant’s directions is explained. The plaintiff also alleges that, during the forenoon of Decern
The rights of the parties to a contract of sale of personal property and the remedies for its breach are Avell settled in this state. If the contract is executory and relates to ordinary commodities which have a general market value, the seller’s remedy, where the buyer Avrongfully refuses to receive or to pay for the goods, is an action for damages for the loss directly and naturally resulting in the natural course of events from the breach of the contract. Trinidad Asphalt Mfg. Co. v. Buchstaff Bros. Mfg. Co., 86 Neb. 623. Ordinarily the recovery is limited to the difference between the contract price and the market price at the time and place where the goods should have been accepted. Had the contract pleaded in the instant case been executed, the goods would have been accepted at Kearney. No particular time is pleaded for the delivery, so that a
Section 121 of the code provides: “In the construction of any pleading, for the purpose of determining its effects, its allegations shall be liberally construed, with a view to substantial justice between the parties.” Substantial justice in the instant case demands that the defendant-recompense the plaintiff for its actual loss naturally and necessarily occasioned by the defendant’s default. The fact that but two car-loads were shipped is immaterial. It does not appear that the defendant refused to accept the two car-loads because three car-loads were not shipped.
Applying to the instant case the rule announced in section 121 of the code, we hold that the plaintiff’s petition states a cause of action for damages for the defendant’s breach of contract, and that the demurrer was properly overruled. It follows that the judgment of the district court should be, and is,
Affirmed.