I concur in the conclusion of Judge SHERWOOD that the judgment and order should be affirmed.
Two propositions were especially relied upon by the defendant as constituting a defense to the action: First, that the provision *204in the contract with reference to shipping instructions and providing for damages was a penalty and unenforceable under the statute. (It seems to have been conceded by all parties that the 25 cents a barrel charge contained in the said damage clause was a penalty and void.) Second, that the plaintiff had never complied with its part of the contract, and had never delivered the flour or tendered delivery. Before the defendant would be entitled to a verdict, he must establish both of these elements of defense. Without considering whether or not the so-called damage clause in the contract was void, I 'believe the evidence conclusively establishes the right of the plaintiff to recover as against the second element of the defense contended for by defendant. Two letters written, by the defendant, one about November 9Ü1 and the other December 17th, amounted to a notice that the defendant would not accept the flour, these notices were never retracted by the defendant, and the legal effect of these notices was to relieve the plaintiff of the useless task of delivering or tendering the property on the cars at Minneapolis, the place of delivery fixed by the contract. Stanford v. McGill, 6 N. D. 536, 72 N. W. 938, 38 L. R. A. 760; Bunge v. Koop, 48 N. Y. 225, 8 Am. Rep. 546; Gray v. Green, 9 Hun (N. Y.) 334; Crist v. Armour, 34 Barb. (N. Y.) 378.
The amount of the judgment given by the court is shown by all the evidence to represent the difference between the contract price and the market value of the commodity at the time and place of delivery, and this is the measure of damages as fixed by our statute. It seems to me therefore, unnecessary to consider the legal effect of the so-called damage clause in the contract.