Wilkes & Co. v. Madden & Sons

Stephens, J. 1. Wliere personal property is shipped by a seller to a purchaser under a contract of sale whereby the purchaser is obligated to pay the freight charges, the contract price having been agreed upon and fixed so as to include a sum sufficient to cover such charges, the seller, who has, after the purchaser’s breach of the contract in refusing to accept and receive the goods from the carrier at the point of destination, paid the freight charges and retained the property for his own use, can not, since the purchaser is under no contractual obligation to pay the freight charges as such, recover the cost of such charges from the purchaser, but the seller’s remedy is a suit against the purchaser for a breach of the contract, under the Civil Code (1910), § 4131, where his measure of damage is the difference between the contract price and the market price at the time and place for delivery. [717] Decided November 29, 1921. Action on contract; from city court of Zebulon — Judge Dupree. December 15, 1920. W. H. Beck, for plaintiffs. Reagan & Reagan, for defendants. 2. The seller’s entire damage for a breach by the purchaser of such a contract being the difference between the contract price and the market price at the time and place for delivery, it follows that the seller not only is not entitled to recover from the purchaser the freight charges above set out, but can not recover the freight charges incurred by him in shipping the property from the point of destination back to the original shipping point. 3. The trial judge therefore did not err in awarding a nonsuit. Judgment affirmed. Jenlcins, P. J., and Sill, J., concur.