Cragin v. Eaton , 133 Miss. 151 ( 1923 )

Holden, J.,

delivered the opinion of the court.

J. S. Easton & Bro., appellees, sued and recovered judgment against the appellant, Cragin, for the sum of nine hundred ninety dollars for a loss sustained by appellees in the sale of nine thousand nine hundred cross-ties-to appellant, which loss was caused on account of appellant breaching his contract and refusing to accept the ties at the price stipulated in the contract, and thereby forcing the appellees to dispose of the ties at a, price of ten cents per tie less than the contract price, from which judgment this appeal is prosecuted.

Briefly stated the case is this: Cragin, the appellant, contracted to purchase ten thousand ties from the appel-lees at a certain price. When the ties, nine thousand, nine hundred of them, were offered to the purchaser, he refused to accept them, unless the sellers would agree to reduce the contract price fifteen cents per tie. The sellers refused to consent to the reduction, but, after a conference and discussion of the matter between the parties, the purchaser proposed to accept the ties at a, reduction of ten cents per tie, and stated to the sellers that, if they would agree to those terms, instead of the terms in the original contract, that they could ship the ties, and bill them to him at this reduced price, and he would accept them. The sellers would not agree at that time to make the reduction in the price, but said that they would let the pur-' chaser know later on.

The sellers, appellees, then offered to sell the ties on the open market for the highest. price obtainable, but were unable to secure a price equal to the offer made by the purchaser, appellant, and thereupon the sellers shipped and billed the ties to the purchaser, appellant, at the reduced price offered by him. The ties were received, and the amount due for them, according to the bill, draft, and offer of appellant, was paid to the sellers. About two years thereafter this suit was filed against the appellant to recover the difference of ten cents each in the price paid by the purchaser for the ties and the price agreed in the original contract.

The suit of the appellees is grounded upon the theory that, when the purchaser breached his contract by failing to take the ties at the agreed contract price, the sellers had three courses to pursue to protect themselves under the circumstances: That they could complete the contract by shipping the ties and sue for the' contract price; or treat the contract as ended and retain the ties, and sue for the difference between the market value and the contract price; or they could sell the property in the market for the best price to be obtained, and sue for the difference between the price realized and the contract price; and that the sellers, in pursuance of the last method, offered the ties upon the market for the best price obtainable, but, being unable to sell them for as much as the appellant, purchaser in the contract, had offered for them, appellees then rightfully accepted the offer of the appellant at the ten cent reduction as being the best price obtainable on the market, and shipped them to appellant, silently reserving the right to thereafter sue the purchaser for the difference in the price received from him and the price in the original contract.

The contention of the appellant is that no recovery can be had in the case, because the original contract was modified by agreement between the parties, and that the purchase and delivery of the ties was made under the substituted agreement and there can be no claim for the difference of ten cents per tie. The statement of the law by the appellees is correct (American Cotton Co. v. Herring, 84 Miss. 693, 37 So. 117; Walker Bros. v. Daggett, 115 Miss. 657, 76 So. 569), so far as concerns the course to be pursued by the sellers when the purchaser had breached his- contract by refusing to take the ties at the contract price. But it seems clear to us the sellers, ap-pellees, enteretain an erroneous view of the facts in the case with reference to the contract acted upon, as disclosed by the testimony offered by the appellees, sellers, and the other evidence.

The testimony of Mr. Eaton, one of the appellees, shows plainly, in short, that Cragin refused to take the ties at the contract price, but offered to take them at a reduction of ten cents per tie, and instructed Mr. Eaton that, if he accepted the proposition, he could ship and bill the ties to him at that reduced price. Mr. Eaton would not accept the proposition of a reduction of ten cents per tie at that time, but said that he would let him know later. Later on the ties were shipped, and billed by Mr. Eaton to the appellant, Cragin, at the reduced price of ten cents per tie, as proposed by Cragin, and which Eaton ivas to have let him know about later on. We think, when Eaton shipped the ties at the reduced price as per the offer made by Cragin, he accepted the terms offered by Cragin, and thereby agreed to sell the ties at the reduced price, and when he so agreed the original contract was thereby modified, and when the modified contract was fulfilled the transaction between the parties was at an end. And that is this case. Mackie & (Jo. v. Dale & Sons, 122 Miss. 430, 84 So. 453.

The offer made by Cragin, the purchaser, to take the ties at a ten cent reduction, and the acceptance of the. offer by the seller, Eaton, when he billed and shipped them at that price, ivas not a new and independent transaction between the parties, but ivas merely a modification of the old contract, which took its place as a substitute, and, as held by this court, the agreement between .the parties in such a case is valid, and not without consideration.

If the subsequent agreement between the parties to take the ties at a different price had had no connection, and in no way Avas intended to alter or change the original contract, then the subsequent agreement would not be a modification or substitution of the first, and the obligation under the first Avould not be merged into the subsequent agreement. But where, as in this case, the parties plainly made and accepted a neAV contract, modifying, and, we may say, extinguishing, the old contract, by taking its place, then the seller has no right of recovery for the loss which he agreed to suffer Avhen he accepted the terms of the substituted contract.

We note with interest the contention of counsel for the appellees that the seller had a right, and that it was his duty, to sell the ties to Cragin at the then best price obtainable, and that appellees expected and had a right to hold Cragin for the difference in the amount received and the contract price. But the weakness in this position lies in the fact that it was not a new sale to Cragin, disconnected from the old contract; but it was a delivery to him by agreement under the old contract, but at a reduced price of ten cents per tie. Therefore the modification and fulfillment of the contract precluded a recovery for the loss suffered by appeilees on account of the breach of the original contract, for the reason the appellees agreed to suffer the loss by delivering the ties at the reduced price offered -for them.

In view of these conclusions, the judgment of the lower court must be reversed, and judgment entered here for .the appellant.

Reversed, and judgment here for appellant.

Reversed.