help but know that the damages claimed by the defendant are those which naturally follow a delay at the season of the year when the delivery was made, and such as we may reasonably infer were within the contemplation of both parties when the contract was made.

in the silo that was shipped to the defend- | óbtainable in any local market. It could not ant, and also that the stipulation that written notice of defects or missing parts should be given "at once" required an earlier notice than the one given by the defendant in January following the delivery of the silo, we still see no serious objections to the recovery of damages by the defendant. The express purpose of the notice was to enable the plaintiff to supply the missing or defective parts and to give it a reasonable time in which to do it. Upon receiving the notice that was given in January, the plaintiff raised no question about the lateness of the notice, but stated in reply:

“Advise me in regard to this matter, and we will figure out how many staves you will have to have, and will furnish them to you free of charge.'

In an exchange of letters regarding the matter, which continued until August 20, 1913, the plaintiff stated that while it did not wish to assume the expense of sending a man to the defendant's place to inspect the silo, it did, in a number of letters, indicate a willingness to supply the necessary staves and make good the defects upon receiving definite information as to what was lacking or defective. If there was unnecessary delay in giving the notice, it was certainly waived by the plaintiff. As we have seen, the purpose of the notice was to furnish the plaintiff reasonable time to replace the parts and when it did receive notice it negotiated with the defendant about a year after the time for delivery in regard to replacements of parts, and certainly it had a reasonable time in which to make such replacements. The defendant did not ask for a rescission nor undertake to turn the silo back upon a warranty, but accepted it with the defects, and asked damages because the silo was not up to the standard of the one which the plaintiff agreed to furnish him. He accepted the material as it was, and asked plaintiff to pay the damages which directly resulted from the breach of its contract. This he could do. Plaintiff insists that the damages resulting from the delay and the drying up of the crop are special in their nature, and not recoverable unless the plaintiff had knowledge at the time the contract was made of the circumstances which might occasion loss in case of delay. It is well known that a silo is designed and used to preserve green fodder, and not for the storage of that which is ripe and dry. The defendant's silo was purchased for that use, and to be delivered at a fixed time. The plaintiff must be held to have been acquainted with the seasons and the stages of vegetation in the growing season, and it must have known that ordinarily corn becomes ready for use as ensilage in August, and in this climate frequently ripens and dries up long before the time the silo was delivered to the defendant. Plaintiff also knew that silos are not made in every county or

In Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444, as in this case, the material was purhased for a special purpose and to be delivered at a stated time, but it was not delivered at the time agreed upon, and, when delivered, did not comply with the contract of purchase. The defendant in that case, as here, accepted the material and undertook to lessen the damages for which he intended to hold the plaintiff liable. It was held that the plaintiff was responsible for such damages as were the direct result of his failure, although the damages exceeded the difference between the contract and market prices. It was said that:

"Under special circumstances, as where merchandise is purchased for a particular purpose, where it cannot be purchased in the market at and to be delivered at a specified time, and the place of delivery, and these facts are known to the vendor, the general rule of damages would be inadequate to compensate the vendee for a delay or a nondelivery of the merchandise, but in such a case he would be entitled to recover the actual loss directly and naturally resulting from the default of the vendor." Syl. par. 3.

The same view was taken in Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513, where many other cases are cited, and in stating the rule it was said:

covered when they arise naturally-that is, ac"It is a general rule that damages may be recording to the usual course of things-from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it." Syl. par. 1.

The damages allowed herein appear to be the reasonable and natural consequence of the breach of the contract and may reasonably be supposed to have been in the contemplation of both parties when they entered into the contract.

Although complaint is made of the instructions of the court, they fairly presented the issues in the case to the jury. The order required the shipment of the silo on or before August 1, 1912, or "at your earliest convenience." In one of the instructions the court properly advised the jury that the term "at your earliest convenience," used in the contract, meant that it should be shipped on August 1st, or within a reasonable time thereafter, and that what was a reasonable time should be determined from the evidence and the circumstances of the case, including the use intended to be made of the silo or the material purchased. We find nothing substantial in the objections to other instruc

tions, nor in the rulings on the admission of Gen. Stat. 1909, c. 9. The plaintiff then filed evidence. this action against Wehe, the surety, on the

The judgment is affirmed. All the Justices appeal bond. Wehe answered, pleading all concurring.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tion of the principal debtor. An exception to this rule takes place whenever the extinction of the obligation of the principal arises from causes, such as bankruptcy and certificate, which originate with the law, and not with the voluntary acts of the creditor.'"

In Burtis, Adm'r, v. Wait, 33 Kan. 478, 6 Pac. 783, it was held that a wife who had mortgaged her real estate to secure the payment of a promissory note given by her husband was liable under the mortgage obligation although her husband had been relieved of payment of the note by his discharge in bankruptcy. The court said:

"It is conceded that the mortgage was given before the discharge in bankruptcy was obtained, or the application filed therefor, and that the debt secured by the mortgage has never been paid: but it is contended that the discharge under the bankruptcy proceedings wiped out the debt secured by the mortgage, and that there is no debt whatever existing. The argument of counsel is not sound. The discharge in bankruptcy is not payment.

*

"Lizzie S. Burtis, by executing the mortgage apon her own real estate for the purpose of securing the individual debt of her husband, became surety of her husband, and within the terms of the bankrupt law his discharge in bankruptcy did not release or discharge her from hability upon the mortgage." 33 Kan. 481, 482,

6 Pac. 785.

ant made objection that the action was one at
law, and demanded a jury trial, which was
agreed to by court and counsel provided defend-
ant pay the jury fee required by law, but the
case proceeded and was finally decided as an ac-
tion for money, the defendant waived his right
to a trial by jury.

Dig. § 181; Dec. Dig. 28(6).]
[Ed. Note.-For other cases, see Jury, Cent.

Department 1. Appeal from Superior
Court, Pierce County; W. O. Chapman,
Judge.

Action by James Alexander and wife against Cyrus A. Mentzer. Judgment for plaintiffs, and defendant appeals. Affirmed.

J. W. A. Nichols, of Tacoma, for appellant. S. F. McAnally, of Tacoma, for respondents.

PER CURIAM. This is an appeal from a money judgment entered against appellant. The case, in its inception, was a suit for the foreclosure of a lien. When the case was called for trial, appellant made objection that the action was one at law, and demanded a jury trial. This the court and counsel agreed to, provided appellant would There pay the jury fee required by law. was some discussion as to whether the verApplying these precedents and the general dict would be controlling or only advisory. principle that a surety is only relieved by After some consultation with appellant. the discharge of the principal through the counsel advised the court that they were willvoluntary act of the creditor (32 Cyc. 226, ing to proceed; that they "might as well go 227), it must be held that the defendant is ahead and try it now as any other time." liable on his undertaking, as surety, not- The case proceeded and was finally decided withstanding the discharge of the judgment as an action for money. Granting that the debtor, his principal, by operation of the application was seasonably made, we think bankrupt law. Among many cases exam- appellant clearly waived his right to a trial ined in reaching this conclusion the follow-by jury. ing may be noted: Leader et al. v. MattingAll other questions in the case depend uply, 140 Ala. 444, 37 South. 270; Boyd v. on the sufficiency of the testimony to sustain Agricultural Ins. Co., 20 Colo. App. 28, 76 the findings. We have read the abstract prePac. 986; Dersch v. Walker, 89 S. W. 233, pared by the appellant as well as the ab28 Ky. Law Rep. 325; Serra e Hijo v. Hoff-stract prepared by the respondent, and we man & Co., 30 La. Ann. 67; Cochrane v. conclude that the findings are amply sustainCushing, 124 Mass. 219; Brown & Brown ed by the evidence. Coal Co. v. Antezak, 164 Mich. 110, 128 N. Affirmed. W. 774, 130 N. W. 305, Ann. Cas. 1912B, 778; World Pub. Co. v. Rialto Grain Co., 108 Mo. App. 479, 83 S. W. 781; Witthaus v. Zimmerman, 91 App. Div. 202, 86 N. Y. Supp. 315; Pinkard v. Willis & Bro., 24 Tex. Civ. App. 69, 57 S. W. 891; Love v. McGill, 41 Tex. Civ. App. 471, 91 S. W. 246; Whereatt v. Ellis, 103 Wis. 348, 79 N. W. 416, 74 Am. St. Rep. 865.

JURY 28(6)-RIGHT TO TRIAL BY JURY-
DEMAND-WAIVER OF RIGHT.

(91 Wash, 500)

COLE v. CARRUTHERS. (No. 12842.) (Supreme Court of Washington. June 16, 1916.) BROKERS 56(3) ABANDONMENT OF EM

PLOYMENT BY BROKER.

Where plaintiff as a broker contracted to sell the business of a corporation of which defendant was president, and after making unsuccessful efforts to find a customer abandoned the project, a subsequent sale by defendant to a corporation organized by a former prospective customer whom plaintiff had introduced to defendant, in which corporation the former customer had no interest except an option to purchase shares, did not revive the agreement so as to make defendant liable to plaintiff for a commission on the sale.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. $$ 86-89; Dec. Dig. ~56(3).]

Department 1. Appeal from Superior

In a suit for foreclosure of a lien, where, Court, Pacific County; Edward H. Wright, when the case was called for trial, defend- | Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Hewen & Murray, of South Bend, for ap-it themselves for $60,000, but this also fell pellant. Welsh & Welsh and M. M. Richardson, all of South Bend, for respondent.

In the year 1911, and for some years prior thereto, a corporation organized under the name of Carruthers & Heuston, Inc., was engaged in the business of growing and market-over the property on terms satisfactory to ing oysters, and owned and controlled in con

After listing the property, Cole called it to the attention of one H. Rowland, who, with Cole, undertook to find a purchaser for the property. It is Cole's contention that Rowland first represented to him that he had ample means of his own by which to make the purchase, but afterwards informed him that these funds were not immediately avail-(Supreme Court of Washington. June 16, 1916.) able, and that he would have to enlist his 1. BAILMENT 12 friends in the enterprise. Later on Rowland

2. BAILMENT 32-ACTIONS-DAMAGES. Where money was given to mandatary to buy logs to be delivered to a shingle mill for the principal's account to be sawn into shingles, which were to be shipped to the principal, and the mandatary used a portion of the money to pay debts of the shingle company, which afterwards went into receivership before either the money was returned or all of the shingles shipped, the measure of recovery would not be the full amount, but principal's actual loss.

[Ed. Note.-For other cases, see Bailment, Cent. Dig. §§ 69, 133; Dec. Dig. 32.]

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford, Judge. Action by the Bradford-Kennedy Company against James Buchanan. Judgment for plaintiff, and defendant appeals. Remanded. F. D. Oakley and John E. Gallagher, both of Tacoma, for appellant. Gordon & Remann and A. O. Burmeister, all of Tacoma, for respondent.

ever, relates the receipt of only one. This was, it is admitted, accompanied by the shingle company's draft for payment as if it were not the product of the Bradford Company's own logs. This draft he paid, protesting immediately, however, and demanding in a letter to Buchanan and a communication to Crandall, that the product be shipped and the $2,000 spent according to what he called the terms of the letter.

The shingle company going soon after into the hands of a receiver, plaintiff contends that it has never received any of this $2,000 from Buchanan or the shingle company either in product or in cash. Buchanan for his part shows conclusively that he at least has got none of this money, and that, while he paid some debts of the shingle company, he was acting entirely gratuitously as a friend to both other parties, and, as he thought, carrying out terms agreed to by Bradford in Tacoma and not modified by the letter. In a word, he argues that he believed he was to use this money as a revolving logpurchasing fund, that the Bradford Company would demand free shingles only as the shingle company could afford to ship them without immediate payment, that the Bradford Company would continue to pay for the shingles if necessary to keep the concern going, and be satisfied if shingles not shipped to it were sold and the proceeds used by Buchanan for the purchase of further logs as the Bradford Company's property.

BAUSMAN, J. Tacoma Lumber & Shingle Company, which had been shipping shingles to the plaintiff company in Nebraska and had already executed to it a chattel mortgage, had become embarrassed and at a certain time the plaintiff's president, one Bradford, consulted with the shingle company's officers at Tacoma as to furnishing it further aid. With Crandall, the president of the shingle company, Bradford had long acquaintance. He had at one time been his employer, and he accepted his suggestion that defendant Buchanan act as a depositary or agent in further advances. The result was a conver[1] This case comes to us without apparent sation between Bradford and Buchanan in attempt on either side to develop it to a which the latter undertook to act. Two thou-point where the court could properly decide. sand dollars was to be put in his hands by We cannot affirm the judgment for all the Bradford. With this logs were to be bought $2,000 against Buchanan. From the briefs as the property of Bradford's company. and the record it is plain that counsel on Whatever the conversation may have been, neither side presented the case upon the sole it finally was merged in a letter from Brad- theory upon which it should be considered, ford transmitting the $2,000. This letter is that of a gratuitous bailment or, more propas follows: erly, what is known as mandate. Under all the authorities a mandatary is liable only for gross negligence, and, while he must not disregard instructions, he is not held to a strict and severe accountability. Now, at the end of this letter is a qualifying phrase. The money or the proceeds are to be returned as soon as may be "without inconvenience to the operation." Nor can we overlook the fact that, as this letter itself shows and as the circumstances fully disclose, Crandall was not to be without some part in this business. Moreover, no testimony whatever is adduced to show whether in paying the small Buchanan depositing the money to his own floating debt Buchanan used part of the origaccount speedily expended the whole in logs inal $2,000 or part of the proceeds of the which he turned over to the shingle company. manufactured product sold to others. The Shingles were later shipped to the Bradford testimony is clear, too, that sundry creditors Company, but no definite testimony is pro- were pressing the company and one even duced as to their quantity. According to threatening to take out part of the equipment defendant's testimony all these logs seem to which surely the plaintiff itself had reasons have been, as fast as manufactured, turned to see remain. Nor is it to be overlooked over in carload lots to Bradford, who, how- that the logs of plaintiff would become inFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"In order to facilitate matters (as I judge from Mr. Crandall's telegram that it needs quick action), rather than wait for draft, am inclosing you voucher for $2,000 as per my agreement with you; i. e., to the effect that the money is to be paid for logs delivered to the mill of the Tacoma Lumber & Shingle Co. to be sawn for our account, shingles or proceeds of same to be turned over to us as soon as sawn and dried, less 75¢ per M to be paid by you to the Tacoma Lumber & Shingle Co. for sawing, drying, loading, etc.

Please see that shipments are made as rapidly as possible, and the amount returned as soon as it can be done, without inconvenience to the operation."