Gill & Fisher, Ltd. v. O'Rourke

Opinion by

Smith, J.,

■ The plaintiffs, by a contract made September 21, 1892, sold the defendant twelve thousand bushels of corn, “ to be delivered in quantities to suit, up to Oct. 10th.” On September 27, the defendant called for one thousand five hundred to two thousand bushels, but the plaintiffs declined to receive the defendant’s check in payment and none was delivered. No further call was made; and the plaintiffs, having tendered the corn October 10, resold it October 11, for less than the contract price. This action is brought to recover the difference. The defense is directed both to the right of action and the measure of damages. As to the former, the defendant asserts that the refusal to receive his check was a violation of an agreement to take it which gave him a right to rescind the contract. As to the measure of damages in the event of his liability, he alleges' that on September 28, he gave the plaintiffs written notice that he would default on the contract, and that, under a rule of the commercial exchange to which the sale was subject, it thereupon became the duty of the plaintiffs to sell the corn on or before the first open board thereafter, which was on the day following; and further alleges that before giving this notice it was agreed that he should pay the plaintiffs $90.00 in settlement of the matter, though payment has not been made. The only questions raised by the assignment of errors, however, relate to the construction and effect of the rule and notice referred to, and a portion of the evidence respecting the alleged settlement.

The first point submitted by the defendant, though correctly stating a conclusion of law, was, as a whole, properly refused. The rule of the exchange being a printed one, and the notice to the plaintiffs being in writing, there was nothing for the jury to find as to their effect. It was for the court to construe them, and determine the rights and duties arising from them.

The portion of the charge embraced in the first specification was erroneous. The rule of the exchange required the plaintiffs, on receiving notice that default on the contract was intended, to sell on or before the first open board thereafter. The defendant’s letter of September 28 was clearly notice of his intention to default. If he chose to incur the consequences of a default, he was not bound to give a reason therefor; hence it is not material whether the reason assigned was sufficient to justify a rescission of the contract. With or without such reason, his letter was unmistakable notice of an intention not to comply with his contract; and it cannot be contended that noncompliance is not default. Throughout this letter, with its comment on the action of the plaintiffs, the defendant’s purpose not to take the corn which he had contracted for is evident. Its concluding sentence: “So far as we are concerned deal is off,” is unequivocal; it can be understood only as a final declaration of the defendant’s intention to default on his contract. It is apparent, also, that the plaintiffs so understood it; for in their answer of September 30 they describe it as “repudiating for alleged reasons ” the contract for the corn. Again, in the declaration, they aver that the defendant, “ on Sept. 28th, 1892, repudiated said contract.” Assuredly they cannot complain if their averment of record be taken as correct; and repudiation is certainly default. A default on September 28 being laid as the ground of action, the measure of damages must be determined by the rule of the exchange as to such default; on this point, the date is material. Viewing the defendant’s letter as notice of his intention to default, it was undeniably the duty of the plaintiffs, on receiving it, to resell the corn on or before the first open board thereafter, which appears to have been on the day following; and it was their right to hold the defendant for any loss on such resale. If, indeed, as appears from some of the evidence, the price at that time was above the contract price, they would have sustained no loss on such resale, and the measure of damages indicated would yield them nothing.

The alleged agreement for payment of $90.00 as a settlement would, if made, fix the measure of damages independently of the notice and rule. The finding of the jury against it may have been due to the inaccurate reference by the trial judge to the testimony of one witness in relation to it, which is made the subject of the third specification of error. This witness testified: “ Finally, Mr. Barker, as I understood it, he said it plain enough, said that he would accept three quarters of a cent. Mr. O’Rourke had not yet agreed to pay it, but in a few moments he said: ‘Well, in order to avoid a controversy, I will pay you the $90.00, and that will end our transactions.’ ” The language of the learned trial judge with reference to the testimony of this witness was calculated to mislead the jury. Should the parties proceed to another trial the evidence on this point can receive closer attention, and it may then present a different aspect.

Judgment reversed and venire de novo awarded.