Homesley v. . Elias

RodmaN, J. The stipulations of the parties to the contract of the 25th of January, 1865, although not concurrent —that is, to be performed at the same time and place— were dependent in the sense that if the defendants refused when called on to deliver cotton, the plaintiff might have rescinded the contract and refused to deliver yarn. But it does not follow that plaintiff, who has not rescinded the contract, is not entitled to have damages by reason of the breach of it by defendants. That defendants have broken their contract is clear, and seems to be admitted. The plaintiff is entitled to some damages, and the only question is by what rule they are to be measured. *573 We think the Judge below was mistaken in holding that the damages were in any way affected by the fact that the contract was made during the war, and that the prices of the articles to be exchanged were stated in Confederate currency. The" prices of the cotton and yarn were fixed on solely ag a way of stating how many pounds of cotton should be paid for by one pound of yarn. The rule of damages is the ordinary one where a vendor of goods by executing contract fails to deliver them. It is found that before the 23d of July, 1865, the defendants had received yarn enough to pay for all the 116 bales of cotton, and delivered by them, and for 13,600 pounds more. The plaintiff is, therefore, entitled to recover: 1. The value of this quantity of cotton, at the place agreed on for delivery, at the time of the refusal, fixed by the witness Durham as 23d July, the value to be estimated in legal tender of the United States. The sum thus found is subject to no, deduction except a possible one hereinafter mentioned. 2. The value at the place of delivery on the day stated of such a number of pounds of cotton as would make the 84 bales which were not delivered, this number of 84 bales being the difference between the number delivered (113) and the number agreed to be delivered (200). The value to be estimated as aforesaid, subject, however, to a deduction to be presentí}’ stated. As bale as used in this contract is an uncertain quantity, it must be ascertained how many pounds the defendants were bound to deliver. The contract says that the 200 bales shall weigh “ from 300 to 400 each.” It is settled that when a contract is in the alternative, that is, that the obligor is bound1 to do one of two things, the option is with him, until a breach, which of the two he shall do, and he may discharge himself by doing either. 2 Chit. Con., 11 American edition, 1061; McNilt v. Clark, 7 *574 Johns., 465; Smith v. Sanborn, 11 Johns., 59; Choice v. Moseley, 1 Bailey, 136. In Small v. Quincy, 4 Greenl., 497, (Maine R.) where the contract was to deliver “ from one to three thousand bushels of potatoes,” it was held that the obligor might deliver any quantity he chose between those limits. It is said, however, that after breach, the obligee may select the alternative which is the most advantageous to him and claim damages for the non-performance of that. We conceive that rule to apply only to cases in which the promise was to do some act, or to paya certain sum in money; or where it was to pay a certain sum on one day, or a larger sum on a subsequent day. In those cases the money, or the larger sum, is regarded as in the nature of stipulated damages. The rule cannot apply to a case like the present, where the defendants, by refusing to deliver any part of the cotton, have exercised their option of refusing to deliver the larger quantity, and elected to be liable for the non-delivery of the smaller quantity. Their obligation is to pay damages for not having done at the due time what they were then bound to do, in order to discharge themselves, and as they could have discharged themselves then by a delivery of the less quantity, they can now discharge themselves by paying damages for the non-delivery of that quantity only. Taking the obligation of defendants in its legal effect, to be to, deliver baleé'j|of 300 pounds, each, they are liable for the non-delivery of 84 bales of 300 pounds — 'that is, 25,284 pounds. From this must be deducted the 13,600 pounds, the value of which has been already charged against them. When they pay the damages in respect to that quantity, it will be the same thing as if they had delivered it; and if they had done so, it would manifestly have reduced by that much the quantity in arrear. After this deduction, there remains 11,684 pounds, for the value of which defendants are liable, as aforesaid, of the 13,600 pounds. *575 3. Defendants, however, are entitled to recoup from the above damages the value on 25th July, 1865, at the Clierry-ville depot, of the quantity of yarn, which, by the terms of the contract, plaintiff was to pay for said 11,684 pounds of cotton, that is to say, 1,947 pounds of yarn. For, of course, the plaintiff cannot recover the cotton, or its value, without paying, by deducting it, the price which he agreed.to pay for it. The defendants are also entitled to deduct the cost of hauling 84 bales of cotton from their warehouse to the Charlotte depot. If, after deducting these two items, viz: the value of 1,947 pounds of yarn, and the cost of hauling, from the damages, which the jury may assess in respect to the 11,684 pounds of cotton, any excess shall remain, it will be added to the damages assessed in respect to the 13,600 pounds of cotton. If the value of the yarn shall exceed the damages assessed in respect to the 11,684 pounds of cotton, the excess will be deducted from the damages assessed in respect to the 13,600 pounds of cotton. We think the discharge of the plaintiff, in bankruptcy, will not prevent the defendants from recouping the plaintiff’s damages by the amount of damages accruing to them by reason of his nondelivery of the yarn. The debt of the plaintiff is only what remains after such deduction. Judgment below reversed, and venire de novo. Let this opinion be certified. Plaintiff will recover costs in this Court. Pee Cukiam. Venire de novo.