Cobb v. Cole

Anderson, J., delivered the opinion of the court. (After stating the facts as above.) We have here a seller of lumber who admits that he failed to deliver to the purchaser the lumber in question according to contract, but contends that he was justified in so doing by reason of the fact that the purchaser, to whom he was indebted on open account in an amount not yet due, demanded of him a payment on account, to which demand he acceded. In other words, the appellee says he was justified in refusing to deliver the lumber to appellant according to contract, because appellant had first breached the contract by demanding payment of him, appellee, on account, to which demand he acceded, in violation of the contract. We are considering the question as if it were true, as contended by appellee, that appellant without any right made demand on appellee for payment on account. The correspondence between the parties, however, shows that no such demand was ever made. Taking what the correspondence shows in its strongest light for appellee, it simply amounted to a request on the part of appellant of appellee for the payment of three thousand on account because of the delay of appellee in shipping out the lumber; the needs of appellant, and in view of the further fact, as specifically stated in appellant’s letter of July 7, 1919: “After giving us a check for three thousand dollars and shipping all the lumber of ours that you have due us, there will still be a balance due us; so you are playing perfectly safe.” [53] However, conceding that appellant demanded of appellee a payment of three thousand dollars on account, when he had no right under the contract to do so, to which demand appellee acceded, would that amount to a breach of the contract on the paid of the appellant, justifying appel-lee in refusing to ship out the lumber in question? We think not. A mere demand by one party to a contract of the other party that the latter do something beneficial to the former, which demand is not authorized by the contract, cannot be said to be a breach of the contract by, the party making such demand. At most it would manifest only an effort or desire to breach the contract; and, where the other party to the contract acceded to the demand without claiming a release from performance on his part, we are unable to see how he can complain. Such conduct, to say the least of it, would amount to a condonement of the breach of the contract, if'such demand could in any sense be called a breach. The appellee was under no obligation to pay the three thousand dollars demanded by appellant. All he had to do was to refuse to pay it until all the lumber was shipped out and he had been credited with the proceeds. He could not agree to a breach of the contract and then take advantage of such breach, and profit by it. That is exactly the attitude of appellee in this case. So we conclude that the evidence shows Avithout conflict that appellee breached the contract in question, and therefore the trial court should have directed a verdict on the first count in the declaration for appellant as requested. On the question of the amount of damages appellant was entitled to recover for the bregch of the contract as averred in the first count, appellee contends that there was no evidence that appellant was compelled to go out into the market and buy other lumber in the place of that due him by appellee, and therefore, under the authority of Delapierre v. Chickasaw Lbr. Co., 111 Miss. 607, 71 So. 872, he showed no loss. We do not think that case has any application to the facts of this case, and that this is so patent it is not necessary to distinguish the two cases. Here we [54] have a breach of contract by the seller to deliver to the purchaser specific lumber, certain in quantity, at an agreed price. It seems (dear that the measure of damages is the difference between the contract price and the market price at the time and place of delivery. That is what this court recently held in Sussman, Wormser & Co. v. Sea Food Co., (Miss.) 90 So. 116, and it is a well-established old principle. We are therefore of opinion there is no merit in ap-pellee’s said contention. Appellant assigns several errors as having been committed by the court in the trial of the questions arising out of the second court in the declaration, as Avell as those arising out of appellee’s offset, notice of which was given under the general issue. We have looked carefully into these assignments of error, and find no merit in any of them. As we understand the record, those issues wer-e properly tried and submitted to the jury on appropriate instructions. Only well-established principles of law were involved, not difficult of application to the facts before the court. We therefore do not lengthen this opinion in order to treat them; the bench and bar would not be benefited. Reversed and remanded.