conduct of a juror in asking a defendant, who was on the stand, as to his experience in mechanical engineering, and remarking, upon being told by the defendant that he had acquired it in a factory at a certain place in Japan, that he knew the place very well and knew of no factory there, was not ground for reversal, particularly where no objection was made to the juror's question or remark.

And in People v. Cencevich (1923)

Cal. App. —, 220 Pac. 448 (unlawful possession of intoxicating liquor), an affidavit as to an alleged secret conversation between a juror and a witness was held to be not sufficient ground for setting aside a verdict.

But in Pitchford v. Com. (1923) 135 Va. 654, 115 S. E. 707 (manslaughter), one of the grounds on which a new trial was granted was a private conversation between a juror and a witness for the commonwealth, where the harmlessness of the conversation was not shown, nor the subject which was discussed.

VII. Communications between jurors and

having engaged in other conversations, and one juror having cashed a check at a bank in the presence of a bailiff, where it appeared that nothing was said in reference to the case on trial, the alleged misconduct having been carefully considered by the court below in overruling a motion for a new trial. The court said that any presumption of prejudice, if any there. was, was overcome by the testimony of the bailiff and jurors upon the hearing of the motion for a new trial. And in Cade v. State (1924) - Tex. Crim. Rep. 258 S. W. 484 (manslaughter), a motion for a new trial, which was based upon an alleged conversation between a juror and his father in the presence of a court attendant, was held to have been properly overruled where the trial court was satisfied that no injury to the accused had occurred. But see Toussaint v. State (1922) 92 Tex. Crim. Rep. 374, 244 S. W. 514, supra, II.

-

IX. Written communications. No later decisions herein. For earlier cases, see annotation in 22 A.L.R. 273.

X. Telephone conversations. (Supplementing annotation in 22 A.L.R. 275.)

In Rushnefsky v. State (1922) 92 Tex. Crim. Rep. 433, 244 S. W. 372 (unlawful manufacture of intoxicating liquor), and Toussaint v. State (1922) 92 Tex. Crim. Rep. 374, 244 S. W. 514 (murder), new trials were directed in consequence of telephone conversations between members of juries and outsiders, where the persons with whom the jurors conversed were not called as witnesses to show the nature of the conversations, the burden being on the state to show that the conversations had no reference to the cases that were being tried. But see Proctor v. State (1923) Okla. Crim. Rep. 211 Pac. 1057, supra, VIII.

E. W. H.

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2. One cannot complain that interest which he was under obligation to pay was reckoned from a date later than that from which the other party was entitled to have it reckoned.

[See 2 R. C. L. 237; 1 R. C. L. Supp. 465; 4 R. C. L. Supp. 96.] Sales, § 97

contract for purchase when broken.

of goods 3. One who has contracted to buy a quantity of merchandise to be taken on or before a specified date breaches his contract upon his refusal to comply with it when the final day of performance comes, notwithstanding he has before that time given notice of his intention not to take more of the merchandise than had been delivered if the seller does not acquiesce in such

may recover the actual damages suffered by his purchaser's refusal to comply with his contract, although he makes no attempt to resell it when notified by his purchaser, before the arrival of the final day for performance, that he does not intend to take the ice, since, the contract being still in force, the vendor has no ice to sell. [See 23 R. C. L. 1412.]

Damages, § 380 loss of profits.

5. The contract price, less any credit on cost to him which the seller may have received, is the proper measure of damages for breach of a contract by one who has contracted to purchase a certain quantity of ice to be taken on or before a specified date, after which the seller's right expires so that it cannot be resold, although the buyer notifies the seller prior to that time that he does not intend to fulfil his contract, and the seller makes no attempt to resell, since the seller is not bound to accept the breach. Appeal, § 217 assignment on findings of fact.

6. Assignments of error upon findings of fact are not proper.

Statement by Burpee, J.: These cases were tried together under a stipulation that the evi

dence should be applied to both cases upon all the material issues to which it was applicable. One per

son acted for and under the authority of both defendants in making the contracts involved in these actions, and in all transactions between them and the plaintiff.

On April 8, 1919, the plaintiff, who is a retail ice dealer in Providence, Rhode Island, made a written contract with the American Ice Company to purchase 10,000 tons of ice at $3 a ton, to be loaded by the ice company in vessels furnished by the plaintiff alongside the ice company's docks on the Kennebec river and Boothbay, Maine. This contract contained stipulations that the quality of ice should be such as the ice company then had in its houses in those places, and that it should be loaded at such of those houses as might be convenient for the ice company at the time when the plaintiff's order for each cargo was given, and that all of the ice purchased should be loaded on or before the 1st day of November, 1919, and that the plaintiff would be held liable for any remainder of this ice not taken by him before that day unless he should have relieved himself of that responsibility by written notice before August 1, 1919. The contract required a payment by the plaintiff of $2,000 in cash, and that the ice in each cargo shipped should be paid for by a sight draft attached to the bill of lading until all but 666 tons had been shipped and this remainder would then be shipped without a draft. Under this contract the plaintiff had received only 1,000 tons of ice before July 18, 1919. On that day the defendant the Berkshire Ice Company bought from the plaintiff two barge loads of the remainder of the ice contracted for by the plaintiff, at $4 a ton f. o. b. the loading places in Maine. These barge loads were delivered to, received, and accepted by that company, and sold by it in the regular course of its business. The shipment by the first barge was paid for in full. The ice on the second barge was received on August 29, 1919, and this defendant sent its check

in payment therefor; but afterward it stopped payment on the check, and has ever since refused to pay for this shipment. It contained 1,166 tons, for which, at the agreed price of $4 a ton, the sum of $4,664 became due to the plaintiff. Of this amount this defendant paid on June 1, 1921, $2,000, under a stipulation that this payment should be without prejudice to the rights of either party to this action then pending. There was no evidence that this defendant sold the ice which it received under its contract with the plaintiff at a lower price than it obtained for other ice during the season of 1919. The trial court ordered judgment for the plaintiff to recover the purchase price of the ice in the second shipment which this defendant received, being $4,664, with interest thereon from November 1, 1919, to June 1, 1921, when the payment of $2,000 was made under stipulation, and interest on the remainder of $2,664 from that date to February 24, 1922, the date of the judgment; total, $3,223.85.

On July 18, 1919, the defendant the Naugatuck Valley Ice Company also made a contract with the plaintiff to buy 7,000 tons of this ice which he had agreed to take from the American Ice Company, and which was still undisposed of. This contract was drawn up by the agent of the Naugatuck Valley Ice Company after he had read the contract between the plaintiff and the American Ice Company, and after he had been informed that the plaintiff had seen none of the ice except the 1,000 tons he had already received, and upon no representations as to quality except that the ice received was of good, merchantable quality. Among the provisions of this agreement were the following: That the Naugatuck Valley Ice Company would "pay $3.75 per ton f. o. b. loading port;" would "pay bill of lading at $3 per ton, and send" the plaintiff "the balance of 75 cents per ton and pay $2,000 down to bind the contract;" and would "take this ice before November 1st." In com

pliance with these terms this defendant paid the plaintiff $2,000 on July 18, 1919, and sent a barge to the designated loading places in Maine for a load of ice. This barge was loaded between August 21 and 29, 1919, with 1,238 tons of ice, and arrived in Bridgeport on September 9, 1919, when this cargo was accepted by this defendant, and afterward sold by it in the regular course of its business. There was no evidence that the price obtained for this ice was lower than the price of other ice sold during the same season. This defendant has refused to pay for this load of ice, but on June 1, 1921, made a part payment of $1,000 under a stipulation that this payment should not prejudice any right of either party in this action then pending. The trial court directed judgment to be entered for the plaintiff to recover from this defendant the purchase price of this ice, 1,238 tons at $3.75 a ton, amounting to $4,642.50, less the $2,000 paid when the contract was made, with interest on the remainder from November 1, 1919, to June 1, 1921, and less the $1,000 paid on that day under stipulation, with interest on the then remainder from that date to February 24, 1922, the date of judgment.

All the ice delivered to and accepted by the defendants under their contracts was good, merchantable ice, equal in quality to that generally available for the trade throughout the season of 1919. Neither defendant offered any evidence of loss or damage resulting to it by reason of the quality of the ice delivered.

On August 29, 1919, the Naugatuck Valley Ice Company notified the plaintiff by letter that it would not want any more of his ice after it had received the boats already chartered, meaning the three barges hereinbefore mentioned. On September 3, 1919, this defendant sent the following letter to the plaintiff : "This will notify you that we will not accept any more of your ice after the barge we have chartered ar

rives. The ice you are shipping us is not as you represented it to be, but you are sending ice that is not merchantable. We have requested you to come and inspect same for yourself, but as yet you have failed to do so, and we cannot use any more of it."

The plaintiff received this letter September 7 or 8, 1919, and thereupon made efforts to resell the ice which this defendant refused to take, but did not succeed, and was not able to fulfil his contract with the American Ice Company to take 10,000 tons of ice before November 1, 1919. The quantity which he could not take was 5,619 tons. After the bringing of these actions, and before the trial, the American Ice Company, having been paid $3 a ton for the ice taken, released the plaintiff from his obligation to take the remainder, on condition that he waive all claims against this defendant for damages based upon the amount which he would otherwise have to pay to the American Ice Company on account of the ice not taken before November 1, 1919. Therefore the court fixed the plaintiff's damages because of this defendant's breach of contract at 75 cents a ton of the ice it had refused to take, and found that the plaintiff was entitled to recover, in addition to the contract price of the ice sold and delivered, the sum of $4,214.25 as damages for nonacceptance of undelivered ice, with interest thereon from November 1, 1919, to the date of judgment.

Messrs. Marsh, Stoddard, & Day, for appellants:

If damages for anticipated profits. may be properly considered on the pleadings, the burden of proving them has not been sustained.

Williston, Sales, p. 969; Foos v. Sabin, 84 Ill. 564; Tufts v. Bennett, 163 Mass. 398, 40 N. E. 172; Morris Joseloff Co. v. Spirt, 97 Conn. 447, 117 Atl. 523.

Plaintiff has not complied with the requisites for recovering the entire contract price.

Illustrated Postal Card & Novelty Co. v. Holt, 85 Conn. 140, 81 Atl. 1061,

It is the plaintiff's duty to mitigate damages for the benefit of the defendant, and he cannot collect profits unless this duty has been performed. Pratt v. Dunlap, 85 Conn. 180, 82 Atl. 195; Bridgeport v. Ætna Indemnity Co. 93 Conn. 277, 105 Atl. 680; Ramsey v. Perth Amboy Shipbuilding & Engineering Co. 73 N. J. Eq. 742, 70 Atl. 1101; Warren v. Stoddart, 105 U. S. 224, 26 L. ed. 1117; Stonega Coke & Coal Co. v. Addington, 112 Va. 807, 37 L.R.A. (N.S.) 969, 73 S. E. 257; Standard Ice Co. v. Lynchburg Diamond Ice Factory, 129 Va. 521, 106 S. E. 390; Hughes v. Eastern R. & Lumber Co. 93 Wash. 558, 161 Pac. 343; Sheldon v. Argos Mercantile Corp. 194 App. Div. 472, 185 N. Y. Supp. 513.

The duty to sell is not limited to a sale at the place of delivery named in the contract sued upon, nor is the term "available market" limited to a market at the place of delivery. In case there is no market at that place, the nearest and best available markets are the basis for estimating the loss.

Marshall v. Clark, 78 Conn. 9, 112 Am. St. Rep. 84, 60 Atl. 741; Sutherland, Damages, pp. 2248, 2249; Williston, Sales, § 582; Salmon v. Helena Box Co. 77 C. C. A. 586, 147 Fed. 408; Leeper v. Schroeder, 24 Colo. App. 164, 132 Pac. 701; Grand Tower Min. Mfg. & Transp. Co. v. Phillips, 23 Wall. 471, 23 L. ed. 71; Sedgw. Damages, 9th ed. § 755; Lewis v. Greider, 49 Barb. 606; Dunkirk Colliery Co. v. Lever, L. R. 9 Ch. Div. 20, 39 L. T. N. S. 239, 26 Week. Rep. 841; Standard Ice Co. v. Lynchburg Diamond Ice Factory, 129 Va. 521, 106 S. E. 390; McGehee v. Yunker, 137 Ark. 397, 209 S. W. 65.

Mr. Philo C. Calhoun also for appellants.

Mr. William H. Comley for appellee. Burpee, J., delivered the opinion of the court:

The only question presented in the appeal of the Berkshire Ice Company is whether, if the ice taken and disposed of by that company in the course of its business was of the quality contracted for, the trial court erred in allowing interest on the contract price from November 1, 1919, to the date of the partial payment made without prejudice on June 1, 1921, and thence on the remainder to the date of judgment. The court has found from the evi

dence that this ice was of that quality, and we have not been called on to correct its finding in that particular. The appellant does not contend that under such conditions it is not liable to pay any interest; it complains only about the time fixed as the starting point for reckoning the interest. By the terms of the agreement this sale was made for cash. This defendant knew that the plaintiff, by his contract with the American Ice Company, was bound to pay promptly the sight draft attached to the bill of lading on each cargo shipped, and, in the light of this knowledge, this defendant drew up its contract with the plaintiff, in which it agreed to pay this draft, and send the balance of 75 cents a ton to the plaintiff. appears that it did this upon the first shipment, but decided not to do so on the second, which it received on August 28, 1919. The money was due and payable then, but the defendant has retained and enjoyed its use ever since that day.

It

"It is difficult on principle to see why he [the plaintiff] should not recover, as compensation for that detention, damages measured by the legal rate of interest upon the sum so detained for that time." Healy v. Fallon, 69 Conn. 228, 235, 37 Atl. 497; Loomis v. Gillett, 75 Conn. 298, 53 Atl. 581.

"For the buyer's default in paying for the goods, the seller may recover interest upon the unpaid price during the period of default, which begins, in sales for cash, at the time of the sale, or at least on delivery." Elliott, Sales (Conn.) 691.

Our statute provides that interest may be allowed and recovered in civil actions as damages for the detention of money after it becomes payable. Gen. Stat. § 4797. It would seem, therefore, that the court should have reckoned the interest from August 28, 1919, instead of November 1, 1919. But the court below has found that the parties agreed that interest might be computed from November 1, 1919. and this defendant has not been ag