Elizabeth City Milling Co. v. Phillips

ClaeK, C. J.

By the contract which was made 7 September, 1917, it was provided that the potatoes should be shipped “between 1 January and 1 February, 1918.” Owing to congestion in freight shipments caused by the war the contract was changed, as appears by the correspondence, to provide that the potatoes should be shipped, “25 per cent last of November, 25 per cent in December, 25 per cent in January and February, and 25 per cent in March.”

The plaintiff failed to order any shipment in November, but demanded 50 per cent to be shipped in December and the remaining 50 per cent also in December, or half in December and half in January. These demands were not assented to by the defendant, and were contrary to the amended contract as above set out. On 13 March the plaintiff canceled the order ánd refused to take the remainder of the potatoes, though the defendant had under the terms of the contract all the month of March to complete delivery. The plaintiff received about 25 per cent of the potatoes during December, and in January another shipment covering the deliveries agreed on for February. No written orders were given for November, and the contract was canceled by plaintiff March 13, before the time for the final deliveries had expired.

The plaintiff had no right to recover, upon his own showing, according to which he had breached the contract in four particulars. He was entitled to recover nothing, and the defendant was properly permitted to recover for its damage by reason of the cancellation of its order after deducting the amount in hand, i. e., 50 cents per barrel for the potatoes not delivered and for the frozen potatoes. That is, the defendant recovered the difference between the contract price and the price realized by the sale of the potatoes whose delivery was improperly refused, less the amount of the deposit of 50 cents per barrel for the potatoes not delivered, and proper credit was also given to the'plaintiff for the frozen potatoes.

No error.