Garner v. Charles A. Krause Milling Co.

Stevens, J. It is unnecessary to consider the question of what was in fact the contract entered into by these parties [82] because it clearly appears that Garner & Company are entitled to no recovery under the contract which they contend was made by the communications that passed between these parties. If the contract gave the Krause Milling Company no right to cancel when its plant was destroyed by fire, Garner & Company had the option: (1) to hold the oil meal for the Krause Milling Company and sue that company for the purchase price and thus secure the profits of the bargain; or (2) to sell the oil meal as agent for the Krause Milling Company and recover the difference between the contract price and a fair market value upon resale as a liquidated amount of damages; or (3) to keep the goods and recover the difference between the contract price and the fair market value. Schuenemann v. John G. Wollaeger Co. 170 Wis. 616, 618, 176 N. W. 59. Garner & Company kept the meal themselves and attempted to charge the Krause Milling Company what they claimed to be the difference between the contract price and the market price at the date of the breach. They made no effort to sell the meal on the open market. The meal was not offered for sale in Milwaukee, the place of delivery. The market price claimed by Garner & Company was based upon the price prevailing in the state of Texas. Where a seller elects to keep the article sold and attempts to collect the difference between the contract price and the market price, he is under obligation to give the defaulting buyer the advantage of the full and fair market price at the agreed delivery point in Wisconsin. Lincoln v. Charles Alshuler Mfg. Co. 142 Wis. 475, 484, 125 N. W. 908. The undisputed proof is that the market price of oil meal in Milwaukee at the time of breach was $52 a ton, which is from $1.50 to $3 a ton in excess of the prices fixed in the three contracts. It follows that Garner & Company sustained no damage from the breach of the contract, because at the time [83] of the breach they could have sold the meal on the open market at the place of delivery for a sum in excess of the contract price. The case differs from Sloss-Sheffield S. & I. Co. v. Wis. F. & M. Co. 187 Wis. 34, 38, 203 N. W. 746, in that the plaintiff in that case “chose to keep the contracts alive.” Here Garner & Company elected to terminate the contract when it was breached by the Krause Milling Company, as they had the right to do, but were not bound to do. Manifestly one party to . a contract cannot terminate it without the consent of the other. But when both parties consent to terminate the contract, it is at an end and the rights of the parties are fixed as of that time. The rights of the parties to a contract are not necessarily determined exclusively under the Uniform Sales Act. “The provisions of the Uniform Sales Act (ch. 121, Stats.) are not above or exclusive of the broader right of parties to make their own contracts, and any or all such provisions may be negatived or varied by express agreement.” Renne v. Volk, 188 Wis. 508, 510, 205 N. W. 385. As was well stated in the case just cited, if one may waive substantial rights such as are guaranteed to him by the constitution, we can see no logical reason for saying that he may not, if he chooses, as did Garner & Company here, waive that which is a condition attached by statute or rule of law to a contract which is silent on the subject. By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.