White v. Cooper

SMITH, Chief Justice.

Plaintiff, B. P. Cooper, sued the defendant A. B.' White for damages for an alleged breach of contract, dated August 13, 1937, by which plaintiff became obligated to ship, and defendant became obligated to take and pay for, an average of 150 to 160 barrels of crude oil daily, “as and if produced,” f. o. b. Pettus, Texas, to defendant’s refinery at Harlingen, Texas, for a period of six months beginning September 1, 1937.

It appears from the record that plaintiff made various deliveries to defendant under the contract, but not always in the daily quantities provided in the agreement; that before the contract period expired defendant notified plaintiff to cease shipments (for the stated reason that defendant's plant had broken down) • and thereafter refused to accept or pay for any more of plaintiff’s product. Plaintiff sued to recover the difference between the stipulated price of the product contracted for and rejected, and the price at which he was forced to sell it because of its rejection. In a trial to the court, without a jury, plaintiff recovered as prayed for and defendant has appealed. The parties will' be designated as plaintiff and defendant, respectively, as in the trial court.

The trial judge found that plaintiff breached the contract by consistently shipping less' quantities of oil daily than he had agreed to ship, but that defendant waived the' breach by his conduct and was therefore not entitled to the attempted cancellation. The case is •'one of fact, which the trial judge resolved against defendant upon full written findings and conclusions of law.

In his first and second propositions' 'defendant asserts that plaintiff was prohibited from recovering because it appeared and the court found that plaintiff first breached the contract, or only partially performed his obligations thereunder. The propositions are sound so far: as they go, but fail in the face of the finding that defendant waived the breach by plaintiff, by continually accepting less than full performance, without ' complaint, .'and thereby cut himself, off from the .righ.t .of repudiation without prior notice of an intention to thereafter exact strict, performance. We overrule defendant’s -first and second propositions, and for like ’ reasons his fourth and fifth propositions.

It appears that the court-admitted testimony that the parties had a parol ‘agreement concerning the number .of, tank cars to be used in shipping the oil to defendant, which had the effect of placing, a greater burden on defendant than was imposed upon him by express terms of the written agreement. The trial • court admitted this testimony over defendant’s objection that it varied the terms of the written agreement; it was admitted on the theory that the written agreement :was ambiguous. The parties write at • great length in their briefs upon this question, which is raised in defendant’s third proposition, but the question is not deemed material to the appeal. It did not affect the controlling questions of breach and waiver, and even if the testimony was inadmissible, it would be presumed, andi in fact the trial judge expressly stated in his findings, and he would render the judgment appealed from without regard to the objectionable testimony. We overrule defendant’s third proposition.

The judgment is affirmed.