Pope Metals Co. v. Sadek

WiNsnow, O. J. The trial court was right in holding that there was a binding contract shown as matter of law. The brokers were the agents of both parties, and the bought and sold notes signed by them and containing the terms of the contract satisfied the statute of frauds. Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950; Newberry v. Wall, 84 N. Y. 576; 20 Cyc. 256. 'It is said, however, that the brokers were not authorized to insert in the contract specifications as to the particular brand or shape of the copper. All the evidence bearing on the subject tends to show that the insertion of such provisions by the broker is usual and customary in the trade, but were this, otherwise it is very clear that the contract was expressly ratified and approved by the defendants’ telegram of March 18th to Trench & Co., and by their telegram of the same date to-the New York Metal Selling Company, instructing them to make delivery of the 100 tons of copper to the plaintiffs in accordance with the broker’s contract. The only question in the case, therefore, was the question of the amount of the damages. It cannot be denied that as a general rule, in actions for breach of executory contracts of sale, the damages are the difference between the contract price and the market price at the time and place fixed by the contract for delivery, with interest from the time of the breach. Vogt v. Schienebeck, 122 Wis. 491, 100 N. W. 820; Southern F. & G. Co. v. McGeehan, 144 Wis. 130, 128 N. W. 879. The appellants invoke the well established principle that it. is the duty of the plaintiff, in case of a breach of contract, to exercise reasonable diligence to minimize the damages, and argue that, as it appears that it gave directions to the effect that the copper was to be delivered at the docks in Houghton [399] ready to be forwarded by steamer to Buffalo, it was plaintiff’s duty to accept it at tbe docks in Milwaukee ready for forwarding by steamer to Buffalo, provided that tbe defendants equalized tbe difference in freight, amounting to $80, wbicb they offered to do. Tbe court is of tbe opinion that it cannot be said as matter of law tbat tbe plaintiff was bound to accept delivery at Milwaukee with an equalization of freight. This was not an isolated purchase of certain articles of merchandise to be delivered at Buffalo, and wbicb might just as well be shipped from Milwaukee as from Houghton; but it was, on tbe other band, a transaction in tbe market of tbe world, where it is well known tbat certificates and bills of lading are generally used to discharge contracts, and tbat tbe right to call for delivery of a staple commodity at a recognized world market is generally of much greater value than tbe right to call for delivery at a place where there is no recognized market. Tbe jury in tbe present case found, under instructions wbicb are not complained of, tbat tbe plaintiff’s damage was $690, and we cannot say tbat tbe finding is erroneous. By the Gourt. — Judgment affirmed.