Clinton Cotton Mills, Inc. v. Goldberg

*508 BrogdeN, J. Evidence was offered by the plaintiff in support of its claim and tending to show full compliance with the contract on its part and breach of contract on the part of defendants. Likewise the defendants offered evidence tending to show a breach by the plaintiff, thus relieving the defendants from the duty of accepting the shipments. Therefore, in the last analysis the cause was reduced to an issue of fact. The principles of law involved are plain and well settled. If a buyer of goods, without legal cause, refuses to- accept the goods before the time for performance has expired, such refusal dispenses with the necessity for tender, if the seller is otherwise able, ready and willing to comply with the terms of the contract. Wilson v. Cotton Mills, 140 N. C., 52, 52 N. E., 250; Ward v. Albertson, 165 N. C., 218, 81 S. E., 168; Bryant v. Lumber Co., 192 N. C., 601, 135 S. E., 531; Wade v. Lutterloh, 196 N. C., 116, 144 S. E., 694. The opinion of the Court in the Wade case, supra, quotes with approval the following pertinent proposition of law: “Renunciation by one party excuses the other from any further offer to perform, so that the failure of such other party to perform or to tender performance does not give to the party who was originally in default the right to treat the contract as discharged because of such nonperformance; and such failure does not show that the party who was originally not in default and who has omitted to perform further, or to tender performance, has consented to treat such contract as discharged so as to prevent him from enforcing it thereafter, at least by an action for damages or some similar appropriate remedy.” If the defendants, without legal cause, refused to accept further shipments, the plaintiff had the right to resell the material specified in the contract as agent of defendants and to recover from them the difference between the contract price and that obtained on the resale, if the resale was made within a reasonable time, fairly conducted, with full notice, and consummated, in the exercise of utmost good faith. Lamborn v. Hollingsworth, 195 N. C., 350, 142 S. E., 19. The plaintiff offered evidence tending to show performance of this duty. However, the defendants contended that if plaintiff had exercised reasonable care and diligence in selling in the open market, the price obtained would have been equal to- or in excess of that specified in the contract and consequently plaintiff would have suffered no damage. In this connection, the trial judge instructed the jury that the burden was on the defendants to show that the market value was more than the contract price. The defendants assert that the court, by such instruction, imposed upon them a burden of proof not contemplated or permitted by law. Manifestly, it was the duty of the plaintiff to exercise reasonable diligence to diminish and minimize the loss resulting from the breach of *509 contract by undertaking to dispose of tbe waste for tbe best price obtainable, under all tbe circumstances. Hassard-Short v. Hardison, 114 N. C., 482, 19 S. E., 728; Mills v. McRae, 187 N. C., 707, 122 S. E., 762; Construction Co. v. Wright, 189 N. C., 456, 127 S. E., 580. Tbe pertinent principle of law was tbus stated in tbe Mills case, supra: “It would seem to be more in accord witb fairness to require tbe defaulting seller — tbe party charged witb responsibility for breach of tbe contract — to prove that similar goods could have been readily procured in tbe market than to require tbe vendee to show that like goods could not be obtained in tbe market.” That is to say, if tbe party in default asserts that tbe other party has failed to exercise reasonable diligence in diminishing and minimizing tbe loss, tbe burden is upon such defaulting party to establish bis contention by proper evidence. Viewed in this light, tbe instruction complained of cannot be held for error. No error.