Opinion
June Term, 1876.
Construction of Contract.
1. By a written contract, 25 January, 1865, A agreed to sell and deliver to B, at the Charlotte depot, 200 bales of cotton to weigh from 300 to 400 pounds at $1.50 per pound, in payment of which B agrees to deliver, at the Cherryville depot, cotton yarns at $45 per bunch of 5 pounds, both cotton and yarns to be delivered in lots as called for, and the whole in six months. A delivered 116 bales of the 200, and refused to deliver any more; and at the time of such refusal, 23 July, 1865, B had delivered 2,000 bunches of yarn, which overpaid for the 116 bales of cotton by 13,600 pounds of cotton. In an action against A for not delivering the balance of the 200 bales, to wit, 84 bales:
2. It was held, 1, that B was entitled to recover the value of the 13,600 pounds of cotton, at the place agreed on for delivery, at the time of refusal, 23 July, 1865, to be estimated in the legal tender of the United States.
3. Held further, that B was further entitled to recover the value, at the place of delivery, of such a number of pounds of cotton as would make 84 bales of 300 pounds each, to wit, 25,284 pounds, from which is to be deducted the 13,600 already charged, leaving remaining to be accounted for 11,684 pounds.
4. Held further, that A was entitled to recoup from the above damages the value on the said 25 July, at the Cherryville depot, of the quantity of yarn, which by the terms of the contract B was to pay for the 11,684 pounds of cotton, to wit: 1,947 pounds of yarn; A is also entitled to deduct the cost of hauling the 84 bales of cotton to the depot from his warehouse.
5. Held further, that if, after deducting the value of the 1,147 pounds of yarn and the cost of hauling from the damages the jury may assess in respect to the 11,684 pounds of cotton, any excess shall remain, it will be added to the damages assessed in respect to the 13,600 pounds of cotton. If the value of the yarn shall exceed the damages assessed in respect to the 11,684 pounds of cotton, the excess will be deducted from the damages in respect to the 13,600 pounds of cotton.
ACTION, for breach of contract, tried before Buxton, J., at Spring Term, 1876, of UNION.
Battle Mordecai and Hinsdale for appellant.
Wilson Son contra.
The summons in this suit issued 5 March, 1870, returnable to the Superior Court of Cleveland County, from whence it was removed, on affidavit, to the county of Gaston, and there tried, Fall Term, (565) 1871, when the jury rendered a verdict in favor of the plaintiff, and he had judgment, from which judgment defendants appealed. See 66 N.C. 330. A new trial was awarded and, by consent, the cause was removed to Union County.
The contract (written) upon which the suit was brought was entered into 25 January, 1865, and contained, substantially, the following stipulations: That the defendants agreed to sell the plaintiff 200 bales of cotton of middling quality weighing from 300 to 400 pounds per bale, to be delivered as called for at the depot in Charlotte within six months from date of contract.
The plaintiff agreed to pay for the cotton at the rate of $1.50 per pound in cotton yarn at $45 per bunch of 5 pounds, to be delivered at Cherryville depot in lots, the whole of said yarn to be delivered within six months.
The plaintiff contended, and proved by his own and the testimony of others, that he had received only 116 bales of cotton, leaving a balance of 84 bales to make up the 200 which the defendants agreed to deliver, and that he had delivered to them 2,000 bunches of yarn, running from Nos. 7 to 10. He (the plaintiff) further stated that he had the stipulated amount of yarn in his factory, but did not deliver more because he could not get more cotton from the defendants; that he called upon the defendants in Charlotte repeatedly for the balance of the cotton and for a settlement of the whole matter; that defendants refused to deliver any more cotton, saying that they had made a bad trade, had paid cotton enough, and that they thought that plaintiff ought to let them off. Plaintiff also sent one Durham with the written contract to defendants to demand a settlement. Durham had no better success than the plaintiff had before had.
There was other evidence offered by plaintiff tending to prove same facts as likewise those stated in the former report of this case, 66 N.C. 330, and those set out in the opinion of Justice RODMAN, at this term, and which it is deemed unnecessary again to state here.
There was a verdict for the plaintiff for $736.25. Rule by plaintiff for a new trial. Rule discharged. Judgment in accordance with the verdict, and appeal by plaintiff.
The stipulations of the parties to the contract of 25 January, 1865, although not concurrent, that is, to be performed at the same time and place, were dependent in the sense that if the defendants refused when called on to deliver cotton the plaintiff might have rescinded the contract and refused to deliver yarn. But it does not follow that plaintiff, who has not rescinded the contract, is not entitled to have damages by reason of the breach of it by defendants. That defendants have broken their contract is clear, and seems to be admitted. The plaintiff is entitled to some damages, and the only question is by what rule they are to be measured.
We think the judge below was mistaken in holding that the (573) damages were in any way affected by the fact that the contract was made during the war, and that the prices of the articles to be exchanged were stated in Confederate currency. The prices of the cotton and yarn were fixed on solely as a way of stating how many pounds of cotton should be paid for by one pound of yarn. The rule of damages is the ordinary one where a vendor of goods by executing contract fails to deliver them. It is found that before 23 July, 1865, the defendants had received yarn enough to pay for all the 116 bales of cotton and delivered by them and for 13,600 pounds more.
The plaintiff is therefore entitled to recover:
1. The value of this quantity of cotton at the place agreed on for delivery at the time of the refusal, fixed by the witness Durham as 23 July, the value to be estimated in legal tender of the United States. The sum thus found is subject to no deduction, except a possible one hereinafter mentioned.
2. The value at the place of delivery on the day stated of such a number of pounds of cotton as would make the 84 bales which were not delivered, this number of 84 bales being the difference between the number delivered (116) and the number agreed to be delivered (200). The value to be estimated as aforesaid, subject, however, to a deduction to be presently stated.
As a bale, as used in this contract, is an uncertain quantity, it must be ascertained how many pounds the defendants were bound to deliver. The contract says that the 200 bales shall weigh "from 300 to 400 each."
It is settled that when a contract is in the alternative, that is, that the obligor is bound to do one of two things, the option is with him, until a breach, which of the two he shall do, and he may discharge himself by doing either. 2 Chit. Con., 11 Am. Ed., 1061; McNilt v. (574) Clark, 7 Johns., 465; Smith v. Sanborn, 11 Johns., 59; Choice v. Moseley, 1 Bailey, 136.
In Small v. Quincy, 4 Greenl. (Me.), 479, where the contract was to deliver "from one to three thousand bushels of potatoes," it was held that the obligor might deliver any quantity he chose between those limits.
It is said, however, that after breach the obligee may select the alternative which is the most advantageous to him, and claim damages for the nonperformance of that. We conceive that rule to apply only to cases in which the promise was to do some act, or to pay a certain sum in money; or where it was to pay a certain sum on one day, or a larger sum on a subsequent day. In those cases the money, or the larger sum, is regarded as in the nature of stipulated damages. The rule cannot apply to a case like the present, where the defendants, by refusing to deliver any part of the cotton, have exercised their option of refusing to deliver the larger quantity, and elected to be liable for the nondelivery of the smaller quantity. Their obligation is to pay damages for not having done at the due time what they were then bound to do, in order to discharge themselves, and as they could have discharged themselves then by a delivery of the less quantity, they can now discharge by paying damages for the nondelivery of that quantity only.
Taking the obligation of defendants in its legal effect to be to deliver bales of 300 pounds each, they are liable for the nondelivery of 84 bales of 300 pounds — that is, 25,284 pounds. From this must be deducted the 13,600 pounds the value of which has been already charged against them. When they pay the damages in respect to that quantity, it will be the same thing as if they had delivered it; and if they had done so, it would manifestly have reduced by that much the quantity in arrear. After this deduction there remains 11,684 pounds, for the value of which defendants are liable, as aforesaid, of the 13,600 pounds.
3. Defendants, however, are entitled to recoup from the above damages the value on 25 July, 1865, at the Cherryville depot, of (575) the quantity of yarn, which by the terms of the contract plaintiff was to pay for said 11,684 pounds of cotton, that is to say, 1,947 pounds of yarn. For, of course, the plaintiff cannot recover the cotton, or its value, without paying, by deducting it, the price, which he agreed to pay for it. The defendants are also entitled to deduct the cost of hauling 84 bales of cotton from their warehouse to the Charlotte depot. If, after deducting these two items, viz., the value of 1,947 pounds of yarn and the cost of hauling, from the damages, which the jury may assess in respect of the 11,684 pounds of cotton, any excess shall remain, it will be added to the damages assessed in respect to the 13,600 pounds of cotton. If the value of the yarn shall exceed the damages assessed in respect to the 11,684 pounds of cotton, the excess will be deducted from the damages assessed in respect to the 13,600 pounds of cotton. We think the discharge of the plaintiff, in bankruptcy, will not prevent the defendants from recouping the plaintiff's damages by the amount of damages accruing to them by reason of his nondelivery of the yarn. The debt of the plaintiff is only what remains after such deduction.
Judgment below reserved, and
PER CURIAM. Venire de novo.
Cited: Coal Co. v. Ice Co., 134 N.C. 588; Horner v. Electric Co., 153 N.C. 539; Berbarry v. Tombacher, 162 N.C. 500; Lumber Co. v. Furniture Co., 167 N.C. 567.
(576)