Ball v. Campbell , 30 Kan. 177 ( 1883 )

The opinion of the court was delivered by

Horton, C. J.:

It appears from the findings of fact that •under the contract between the parties to this action, defendant below had the privilege of drawing money against the wheat shipped by him through plaintiffs’ elevator to Kansas City, Missouri, to within about ten cents of its value at any given time, but if this margin was not kept up, plaintiffs could sell the wheat to make themselves secure. The defendant, needing money, on February 5, 1880, drew enough from plaintiffs, with what he had received before, to come to within $300 of his margin as the price of wheat stood on that day. Soon after wheat began to decline, and continued in April following to decline so much that the plaintiffs called upon the defendant to put up the margin, it being then exhausted. He refused, and plaintiffs being in fear as to the future price, sold the wheat, in good faith, on April 2Ó, 1880, at 90 cents per bushel, and gave credit to the defendant for the amount realized.

Two things concurred to put the defendant in default: a •decline in the market value of the wheat below the margin, and a demand by the plaintiffs that the defendant should make such margin good. The plaintiffs neglected to give notice to the defendant of the time and place of the sale of the wheat. There was no express agreement as to whether plaintiffs should sell the wheat at public or private sale, or whether they should give notice of the time and place of the. sale thereof. But, conceding that the sale was irregular on account of the neglect to give notice to the defendant, and that such sale constituted a conversion, we do not perceive that the defendant has any cause of complaint. The wheat sold at 90 cents per bushel. While it fluctuated a little about the date of the sale, in a few days it went much lower, and so remained during the rest of the season. We suppose-from the findings that the wheat was sold at its full value,, and as it went much lower in price and remained there, the-defendant, instead of being injured, was benefited by the sale. If the defendant had shown that the market value of the wheat at the time of the sale, or within a reasonable time thereafter, exceeded the price for which it was sold, he would be entitled to an additional credit for the difference. (Shepard v. Pratt, 16 Kas. 209.) But as he could have replaced the-wheat at less than 90 cents per bushel within a reasonable-time after notice of the sale, he was not injured. Indeed, instead of being injured, he was benefited by the sale. (Gruman v. Smith, 81 N. Y. 25.)

Something is.said in the findings about the price of wheat-fluctuating a little about the date of sale. But this part of the findings is not sufficiently clear or precise to imply that the same could have been made at a higher price. Counsel suggest that the plaintiffs held the wheat for a long time-after it began to decline, for their own benefit, and the-responsibility of the loss should lie with them. As the wheat was subject to the defendant’s order, and could have-been sold under his direction at any time, he cannot complain of the failure to sell at an earlier day. The loss resulting from the decline in the price of wheat must fall upon him — not upon the plaintiffs.

The judgment of the district court will be affirmed.

All the Justices concurring.