Maddox v. Washburn-Crosby Milling Co.

Lumpkin, J. The suit was for a breach of contract on the part of the purchaser of flour to receive it. Having the right to elect any one of the three remedies stated in the first headnote, the ’ seller elected to proceed for the difference between the contract price and the market price at the time and place for delivery. Civil Code, § 3551. In addition it sought to recover certain storage charges. If the basis of the recovery sought was an amount chargeable against the purchaser under a custom of the trade so universal as to enter into the contract and amount to a promise by a purchaser of flour to pay storage in addition to purchase-price, the allegations were insufficient. They did not show that it was the universal custom of the trade that the purchaser should pay storage charges until he should give shipping orders. It was alleged that “Said defendant became liable for said carrying charge.” But this was not such an allegation of a custom for him to pay the charge as to impliedly enter into the contract, and render him, liable by virtue thereof. But the allegations were sufficient to set up a usual and necessary charge incurred by one of the parties in carrying out the contract, and known to be proper by both. Civil Code, § 3806. In other respects the demurrer was without merit. Judgment affirmed. All the Justices concur.