Western Coal & Mining Co. v. Western Coal & Supply Co. ( 1914 )

Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision. 1. Sales, § 175^*—when proof of general custom, as to time for payment competent. In an action for the value of coal sold, where the defendant filed a claim of set-off for an alleged breach of the contract, evidence offered by defendant to show there was a general custom among coal dealers to pay for their coal during the month following the shipment, held competent to show that defendant was not in default at the time of plaintiff’s breach of the-contract. 2. Sales, § 320*—right to set-off or recoup damages in suit for price. The fact that a buyer of coal had uot paid therefor does not preclude him in a suit for the price from setting off or recouping damages suffered by him on account of the breach of the contract in not furnishing the stipulated quantity of coal where he was not in default in making payment, for the reason the parties acted upon the understanding that the price was not to be paid until all the coal was delivered.