Elizabeth City Milling Co. v. Phillips
Elizabeth City Milling Co. v. Phillips
Opinion of the Court
By the contract which was made 7 September, 1917, it was provided that the potatoes should be shipped “between 1 January and 1 February, 1918.” Owing to congestion in freight shipments caused by the war the contract was changed, as appears by the correspondence, to provide that the potatoes should be shipped, “25 per cent last of November, 25 per cent in December, 25 per cent in January and February, and 25 per cent in March.”
The plaintiff failed to order any shipment in November, but demanded 50 per cent to be shipped in December and the remaining 50 per cent also in December, or half in December and half in January. These demands were not assented to by the defendant, and were contrary to the amended contract as above set out. On 13 March the plaintiff canceled the order ánd refused to take the remainder of the potatoes, though the defendant had under the terms of the contract all the month of March to complete delivery. The plaintiff received about 25 per cent of the potatoes during December, and in January another shipment covering the deliveries agreed on for February. No written orders were given for November, and the contract was canceled by plaintiff March 13, before the time for the final deliveries had expired.
The plaintiff had no right to recover, upon his own showing, according to which he had breached the contract in four particulars. He was entitled to recover nothing, and the defendant was properly permitted to recover for its damage by reason of the cancellation of its order after deducting the amount in hand, i. e., 50 cents per barrel for the potatoes not delivered and for the frozen potatoes. That is, the defendant recovered the difference between the contract price and the price realized by the sale of the potatoes whose delivery was improperly refused, less the amount of the deposit of 50 cents per barrel for the potatoes not delivered, and proper credit was also given to the'plaintiff for the frozen potatoes.
No error.
Reference
- Full Case Name
- Elizabeth City Milling Company v. Phillips and Company.
- Status
- Published
- Syllabus
- Contracts — Breach—Actions—Damages. The plaintiff bought from the defendant 1,000 bags of seed potatoes for delivery upon his order during specified months of that year, and thereafter, owing to weather conditions and war-traffic congestions, entered into a new contract, in substitution of the old, whereby the defendant was to ship, when ordered out, one-fourth of the potatoes during other stated intervals. The plaintiff did not order out the first shipment, and thereafter ordered out the shipments in one-half the quantity he had bought, and at different periods from those stated in his contract, and declared the contract at an end before the last shipment was thereunder due. In his action to recover damages for loss of x>rofits: Held,, he had breached his own contract and could not recover; and the verdict allowing defendant’s counterclaim for damages for loss by reason of the sale of the. potatoes under the contract price, will not be disturbed.