M'Combs v. M'Kennan

The opinion of the Court was delivered by Sergeant, J. The first error assigned is in the answer of the court, that under the evidence the action might be maintained on the sealed contract. The defendant contends that the contract had been subsequently varied by the agreement of the parties, that the residue of the seed should be delivered at Indiana instead of Pittsburgh; and therefore the plaintiff's action should have been assumpsit on the new contract, and not covenant on the original one. We think, however, the true principle is stated in the charge of the court, that this was not so much an alteration of the original contract, as a waiver or dispensation on the part of the defendant, of certain things to be done by the plaintiff, which were conditions precedent to be performed by him. If a party agrees to accept the thing to be delivered at another time or place than that stipulated, a performance of this by the other party is equivalent to a performance of the original undertaking. It imposes no new duty on the defendant; he merely accepts as performance by the plaintiff that which would not otherwise have been so; and the defendant’s liabilities on the original contract remain the same. The second error assigned is in the charge of the court below, that the removal of the clover-seed did not amount to an abandonment of the contract, and in not fully answering said point. The removal of the clover-seed, after the defendant had failed to comply with his bargain, was no abandonment of the contract by the plaintiff. ' He was not bound to keep it where it was, and let it perish, or wait the rise and fall of the markets. If he took it [219] away for the benefit of all concerned, for the purpose of fairly selling it for the best price that could be got for it, it was no more than he had a right to do, and was perhaps incumbent on him to do, as the defendant had shown his inability or indisposition to receive it on the terms stipulated. The third error assigned is, in the statement of the court, that the receipt of money on the contract before and after the 1st of February, did not preclude the recovery of damages. If the defendant has violated his contract to the injury of the plaintiff, his partial payments of small sums of money, before or after the time when the contract was broken, cannot take away this right of the plaintiff to indemnity, unless there was some stipulation or agreement by the plaintiff at the time of payment that it should have that effect, or the plaintiff accepted the money on that condition, and gave up his claim to damages. Of this there was no proof, and therefore all the defendant could claim was a credit for these sums in the settlement of the damages, which he appears to have received. The fifth error is in stating that the measure of damages would be the difference between the contract price of seed and the price it subsequently sold for. To this, however, the court added, provided that sale was made Iona fide and to the best advantage of all concerned, and that the jury are not bound by this rule, if they can find another more in accordance with the justice of the case. And this appears to be the same kind of direction which was given in the case of Andrews v. Hoover, (8 Watts 239), and approved by this court; and also in Girard v. Taggart, (5 Serg. & Rawle 32). A re-sale is a usual mode to ascertain the difference between the contract price and the value of the article when the vendee refuses to accept it. But it is not the only mode, nor even when it takes place, is it decisive. The jury may, as was the case here, have evidence of other kinds to show the value, and are to judge in the best manner they can from the whole case. The law lays down no one mode as the exclusive one for settling the value of an article in market, at or about a given time; it is a matter to be left to the jury on the evidence, and that seems to be the principle of the cases. Judgment affirmed.