Rose v. Taylor, Lowenstein & Co.

Jenkins, P. J. (After stating the foregoing facts.) The language of the contract, fixing the price of turpentine according to its quoted value on the tenth day after notice to furnish tank cars had been given, must, in our opinion, not only be taken as the measure of damages for any negligent failure to promptly furnish the fears, but must also be taken and construed as an agreement fixing the price of the turpentine in accordance with the conditions and emergencies causing delays for which defendants might not be in any way responsible. While in some cases the market price based upon such ten-days period might be favorable to the defendants, it is just as likely that such an agreement would operate in favor of the plaintiffs. It is not alleged that the delay in furnishing the car was occasioned by any fraud, or even by negligence, of the defendants, and it may have resulted from the act of some third party. So far as the record discloses, the situation arising from the delayed arrival of the car was simply such as was naturally to be anticipated, and as appears to have been in the minds of the parties when the agreement was entered upon. Judgment reversed. Stephens and Mill, JJ., concur.