(dissenting). I think the complaint does not state facts sufficient to constitute a cause of action. There should be an allegation that plaintiff shipped or offered to ship the flour, or that the defendant repudiated his contract. Under the contract, it was the plaintiff’s duty to' ship by the best route and deliver the flour at Mitchell, which he failed to do. When the plaintiff elected to cancel the contract, his right' of recovery ended,’ and the cancellation disposed of the whole order and left no basis for the recovery of any sum whatever. The defendant testified, positively, that he never refused to accept the flour or to perform his part of the contract. This disputed fact should have carried the case to *205the jury. The court erred in directing a verdict in the first instance, and again erred in granting plaintiff's motion for judgment of $280, notwithstanding* the verdict. This record fails to show that the plaintiff had any flour specified in the contract at Mitchell or elsewhere. There was a complete failure on the part of the plaintiff to establish performance or attempted performance on its part. Bonewell v. Jacobson, 130 Iowa 170, 106 N. W. 614, 5 L. R. A. (N. S.) 1436.
The contract provided that “delivery by seller to the carrier at initial point is shipment.'' This constituted a part of the contract which was wholly ignored. It appears that plaintiff informed the defendant that he would not be permitted to sell the flour in some of the counties adjacent to Mitchell in competition with other dealers. The defendant then informed the plaintiff that if his territory was to be restricted, he did not believe that he could handle the flour SO' ordered. The failure of the plaintiff to deliver the flour ordered forms no justification for the cancellation of the order.
The plaintiff seeks to recover damages for a breach of contract on the sale of personal property where the damages are easily ascertainable. The contract provided for a penalty which is void under section 895, C. L.; Seim v. Krause, 13 S. D. 530, 83 N. W. 583; Utley v. Dunning, 38 S. D. 447, 161 N. W. 813.