I think the evidence shows conclusively that the plaintiff, Ray S. Tanner, gave the defendant an order for 9000 broad breasted turkey poults and that this order was regularly *Page 467 accepted by the Childers Hatchery. However, by the provisions of the order, it was accepted subject to hazards beyond the control of the hatchery.
The record discloses that the hatchery was working under some difficulties. These were made known to Mr. Tanner and he, as others, willingly consented that delivery of the poults might be made later than requested in the original orders.
The plaintiff in April, 1943, accepted 4000 poults from the hatchery. About this time, Black explained the causes for delay to the plaintiff and stated that he could not definitely say when the balance of the order could be shipped. About June 1st, Black notified the plaintiff that the next shipment of poults to Utah would fall considerably short of filling all the remaining orders in this area. On June 11, 1943, 7300 turkey poults arrived by truck. These were not consigned to the purchasers but were accompanied by Black, who then told the plaintiff that no more poults would be available and asked plaintiff what he should do. As stated by Mr. Justice McDonough,
"In substance, the plaintiff directed Black to fill all orders of other customers first and then give him the balance. Black did as plaintiff directed. As a consequence, plaintiff received only 768 poults instead of 3500, which he would have received had he permitted the orders to be filled pro rata."
The plaintiff by his pleadings contends that he accepted 750 poults then under an express agreement that the defendant would forthwith deliver to him a balance of 4250 turkey poults on or before July 2, 1943. The plaintiff's own evidence discloses that this was not the case. Black, before delivery of these poults, advised the plaintiff that the delivery would be short and informed plaintiff of the hatchery's difficulties. Then, right at the time of delivery, Black told the plaintiff that there would be no more poults shipped to Utah. These facts are testified to by the plaintiff himself who, not satisfied with Black's statements, testified that he called Emma Childers on long distance and that she said there *Page 468 would be two or three more hatchings and that if he wanted the poults she would deliver them to him by July 2d. For reasons best known to the plaintiff, he wrote the defendant the letter copied in Mr. Justice McDonough's opinion.
I heartily agree with Mr. Justice McDonough that if the plaintiff seeks to recover on a new contract made by telephone for 4250 poults to be delivered by July 2, 1943, he cannot for two reasons: First, such a contract does not comply with the statute of frauds; second, that if such a contract was made it was terminated by the plaintiff's letter of June 15, 1943.
By a great preponderance of evidence, it is well established that when the shipment of 7300 poults arrived the plaintiff waived delivery of the birds, which he would have received had he accepted pro rata delivery.
I concur with the legal definition of hazards of the turkey business as stated. Hazards of the turkey business would
"include those fortuitous events which a raiser of poults could not by the exercise of foresight, skill, efficiency and diligence prevent."
I do not agree with Mr. Justice McDonough as to what these are and that the record justifies but one finding, viz., that the
"failure to fully and promptly perform upon the part of the defendant was due to hazards beyond her control."
I am of the opinion that the defendant was relieved of further performance because of the plaintiff's letter wherein he, in substance, asked the defendant to confirm their agreement as to delivery by letter or wire as he would purchase turkeys elsewhere and hold her for damages.
However, had the plaintiff not have written the letter and no more poults had been delivered to him, he could, in my opinion, have recovered for damages for birds not waived and not delivered unless the defendant could have excused herself for breach of contract by reason of the provision of the contract as to hazards. In such case the court would *Page 469 have had to instruct the jury as to what constituted "hazards" and submitted the factual matters to the jury.
For these reasons, and those of Mr. Justice McDonough's opinion in harmony with these, I concur.