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tempt in filing in good faith a suit to It is not a contempt for a third establish rights which he claims in the party to sue a purchaser of an article property, after a decree directing sale of personal property at a probate sale for partition has been passed, al- for the recovery of such article, though such suit will delay execution claiming a title superior to that of the of the decree.

decedent. Payne v. People (1918) 65 Where a United States deputy

Colo. 75, 173 Pac. 397. marshal, under a court order of sale,

In Ex parte Edmonson (1914) 68 sold personal property by weight, re

Fla. 53, 66 So. 292, it was held that it ceived part of the purchase price, and

is not a contempt of court to levy exeagreed to have the property weighed

cutions upon logs after they have

been, by authority of the court, sold and to make delivery at another place,

and delivered to a purchaser by the at which place, before any delivery,

receiver of the court in whose custody the sheriff, under a writ of replevin

the logs had been prior to the sale and obtained by a stra er, took the prop- delivery, even although payment has erty from the deputy marshal, it was not been made, where payment of the held that the sheriff and the one who purchase price for the logs was not instigated him were guilty of con- a condition precedent to the passage tempt of court. Sabin v. Fogarty of title and possession to the pur(1895) 70 Fed. 482.

chaser.

B. B. B.

BARBER MILLING COMPANY, Appt.,

V.
LEICHTHAMMER BAKING COMPANY.

Pennsylvania Supreme Court - February 20, 1922,

(273 Pa. 90, 116 Atl. 677.) Damages - for breach of contract to purchase flour.

1. One contracting to sell flour and pay freight to destination is not bound to accept the buyer's notice of cancelation, and to resell in the market of his residence in order to minimize damages, but he may ship to destination and hold the buyer liable for loss suffered by fall in price and additional transportation charges resulting from a resale in the nearest market after the flour reaches destination.

[See note on this question beginning on page 1230.] Contract direction to cancel - ef. the obligations of a contract merely fect.

by directing its cancelation.

[See 6 R. C. L. 921, 922; 2 R. C. L. 2. One cannot relieve himself from Supp. 245; 4 R. C. L. Supp. 451.]

APPEAL by plaintiff from a judgment of the Court of Common Pleas for Montgomery County (Miller, J.) in favor of defendant in an action brought to recover the amount of a loss, alleged to have been caused by defendant's breach of contract to purchase flour. Reversed.

The facts are stated in the opinion of the court.

Messrs. Aaron S. Swartz, Jr., John unjustifiably repudiates the contract M. Dettra, Samuel H. High, and Mont- before delivery, and the seller refuses gomery Evans, for appellant:

to accept the repudiation, affirms the In an executory contract for the contract, and ships the flour from sale of flour, where the purchaser Minneapolis to Norristown, where it is refused by the purchaser, the dert Grocery Co. v. Wilkinson, 39 Pa. purchaser is liable for a loss caused Super. Ct. 100. by a drop in the market after the time

Schaffer, J., delivered the opinion of the repudiation and the shipment to Norristown, and the measure of

of the court: dainages is the difference between the

Plaintiff, a milling company in contract price and the market price at

Minneapolis, sold to defendant, a the time and place of delivery.

baker in Norristown, 400 barrels of 13 C. J. 651; 6 R. C. L. p. 1026; Zuck rye flour for future delivery. Unv. McClure, 98 Pa. 541; Kadish v. der the terms of sale, the freight to Young, 108 Ill. 170, 48 Am. Rep. 548; destination was to be paid by the Krebs Hop Co. v. Livesley, 59 Or. 574, seller. Before the delivery date, the 114 Pac. 944, 118 Pac. 165, Ann. Cas.

purchaser notified the seller of can1913C, 758; Johnstone v. Milling, L. R. 16 Q. B. Div. 460, 55 L. J. Q. B. N.

celation of the sale and repudiated S. 162, 54 L. T. N. S. 629, 34 Week.

the contract. Plaintiff refused to Rep. 238, 50 J. P. 694; Leigh v. Pater- acquiesce in the abrogation of the son, 8 Taunt. 540, 129 Eng. Reprint, agreement, shipped the flour to de493; Phillpotts v. Evans, 5 Mees, & fendant at Norristown, the place of W. 475, 151 Eng. Reprint, 200, 9 L. delivery, and, upon vendee's refusal J. Exch. N. S. 33; Ripley v. M'Clure,

to accept, endeavored to sell the flour 4 Exch. 359, 154 Eng. Reprint, 1245,

in Norristown, Philadelphia, and 18 L. J. Exch. N. S. 419; Hochster v. De Latour, 20 Eng. L. & Eq. Rep. 157;

other near-by cities, where, it turned McPherson v. Walker, 40 Ill. 371;

out, there was no market for the Frost v. Knight, L. R. 7 Exch. 111, 41

commodity, and thereafter disposed L. J. Exch. N. S. 78, 26 L. T. N. S. 77,

of it in New York, which was an 20 Week. Rep. 471; Roper v. Johnson, available market, at a loss of $1,L. R. 8 C. P. 167, 42 L. J. C. P. N. S. 660.35, measured by the difference 65, 28 L. T. N. S. 296, 21 Week. Rep. between the contract price and the 384, 23 Eng. Rul. Cas. 532; Roehm v.

sale price, plus the expenses of the Horst, 178 U. S. 1, 44 L. ed. 953, 20

resale. Suit was brought to recover Sup. Ct. Rep. 780; Lincoln v. Charles Alshuler Mfg. Co. 142 Wis. 475, 28

the amount of the loss caused by deL.R.A.(N.S.) 780, 125 N. W. 908;

fendant's breach of contract. The Brooke v. Laurens Mill. Co. 78 S. C. court heard the case without a jury, 200, 125 Am. St. Rep. 780, 58 S. E. 806;

under the Act of 1874 (Pa. Stat. John A. Roebling Sons v. Lock Stitch 1920, $ 17,294), and found in favor Fence Co. 130 Ill. 660, 22 N. E. 518; of, and entered judgment for, deIndependent Mill. Co. v. Howe Scale

fendant; plaintiff has appealed. Co. 105 Kan. 87, 181 Pac. 554; 2

It was admitted on the trial that, Sutherland, Damages, & 648; Lewis v. Scoville, 94 Conn. 79, 108 Atl. 501; Al

at the time of the receipt of vendee's vey-Ferguson Co. v. Ernst Tosetti v

cancelation, and until after its shipBrewing Co. 178 Ill. App. 536.

ment, there was an available marMessrs. C Henry Stinson and Theo

ket for the flour in Minneapolis, dore Lane Bean, for appellee:

where plaintiff could have sold it Plaintiff, in shipping the flour all without any loss. It was also adthe way from Minneapolis to Norris. mitted that the loss was due to the town, assumed the risk of the loss that

fall in the market during the month would follow on the failure of defend

the flour was in transit, and that ant to receive the shipment on its arrival at Norristown, because plain

the transportation delay was in no tiff's knowledge compelled him to

way ascribable to plaintiff. know that his contract would neces

The court below held by shipping sarily subject defendant to increased

the flour to Norristown, and not selldamages.

ing it in Minneapolis, where sale 6 R. C. L. 1029; 23 R. C. L. 1414; could have been made without loss, Hart-Parr Co. v. Finley, 31 N. D. 130, plaintiff assumed the risk of loss, L.R.A.1915E, 851, 153 N. W. 137, Ann. under the principle that it was the

, Cas. 1917E, 706; Morris v. Supplee, seller's duty to minimize it. In com208 Pa. 253, 57 Atl. 566; McHenry v. ing to this conclusion, we think the Bulifant, 207 Pa. 21, 56 Atl. 226; Wol- trial court overlooked two factors of

tion to cancel

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(273 Pa. 90, 116 Atl. 677.) prime moment: First, that defend- cepted cancelation at any time with

ant could not relieve in the term of the contract, and, if Contract-direc

itself from the con- the market had been in its favor, -effect.

tract by directing any profit on a sale would have gone cancelation, for, until the vendor to it, not to the vendor. should agree that it be wiped out, In Zuck v. McClure, 98 Pa. 541, the contract and all its terms were 545 (1881), we said: “A mere nobinding on the vendee, one of its tice of an intended breach [of conprovisions

being that delivery tract] is not of itself a breach of the should be made at Norristown; and, contract. It may become so if acsecond, defendant did not request cepted and acted on by the other plaintiff to sell in Minneapolis. It party. . . The notice of an inwas appellant's right to stand on the tention not to perform the contract, contract as made, and it was not for if not accepted by the other party appellee, who breached the contract, as a present breach, remains only a to set up a variance of its terms in matter of intention, and may be respect to delivery, to the other withdrawn at any time before the party's disadvantage. In coming to performance is in fact due. its decision, the court below appar. The promisee may treat the notice ently relied on the dictum of Mr. of intention as inoperative and Justice Dean in McHenry v. Buli- await the time when the contract is fant, 207 Pa. 15, 56 Atl. 226. In to be executed, and then hold the that case, vendees endeavored to es- other party responsible for all the cape liability on the ground of de

consequences of nonperformance. lay in shipment; and their repudia. But in that case he keeps the contion of the contract, with the right tract alive for the benefit of the to breach it, was put by them on that other party as well as his own; he ground. It was to this situation the remains subject to all his own oblanguage of the opinion referred, ligations and liabilities under it, and when it said: “If the notice [as to enables the other party not only to breach of the contract by the vendor complete the contract, if so advised, by delay in shipment and consequent notwithstanding his previous rerefusal to accept delivery] had been pudiation of it, but also to take adreceived before shipment, plaintiff's vantage of any supervening circumwould have been bound to retain the stance which would justify him in goods at point of shipment in Cali- declining to complete it." fornia.”

Wolbert Grocery Co. v. Wilkinson, In the case just mentioned, the de- 39 Pa. Super. Ct. 100, is a case very fense was that the seller had broken similar, in some of its controlling asthe contract, by failure to ship ac- pects, to the one in hand. There the cording to its terms; here, it is not plaintiff had sold pecan nuts in claimed the seller was at fault, but Texas to defendants in Philadelphia, admitted the breach was by defend- who undertook of their own motion, ant. Under our decisions, and the

before shipment, to cancel the conweight of authority tract, to which the seller refused to Damages-for

elsewhere, the vend- assent. The defendants' claim was or was not required that the vendor, plaintiff, should by the vendee's can

have sold the nuts in Texas, which celation, to resell in the Minneapolis

was not only the place of shipment, market, and then sue for the loss, if

but, it was contended, the place of any; vendor could, as it did, treat the contract as continuing, and delivery as well. Meeting this posiupon actual breach by defendants tion, the superior court said: “Aftrefusal to accept at the place named er the plaintiff had given notice of for delivery, establish the loss by a its determination not to permit a resale in an available market. The cancelation of the contract, it was vendee could have recalled his unac- not obliged to assume that if the car

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breach of contract to purchase flour.

reached its destination in due time, will not receive the property, unless loaded with the quantity and quality the seller, upon receiving such noof goods contracted for, the defend- tice, shall elect to then terminate ants would insist on a flat repudia- the contract." tion of their engagement. Every

Defendant breached the contract; fair presumption of law or morals plaintiff, as was its right, stood to would seem to support the opposite its terms; the loss which resulted conclusion.”

was due to the former's failure to In the very well-considered case live up to the agreement it had of Kadish v. Young, 108 Ill, 170, 43 made, and which it, alone, was powAm. Rep. 548, the rule was laid erless to change. In the absence of down that "in ordinary cases of con- notice to plaintiff to sell the flour at tracts for the sale of personal prop- the place of shipment, defendant erty for future delivery, where the cannot complain that appellant, obpurchaser fails to receive and pay serving the terms of the contract, for it at the stipulated time, the made delivery as therein provided. measure of damages is the differ- The trial judge erred in entering ence between the contract price and judgment for defendant, and that the market or current value of the judgment is reversed, with direcproperty at the time and place of de- tions to the court below to enter livery, and this rule is not affected judgment in favor of plaintiff and by notice to the seller by the buyer against defendant for $1,660.35,

$ before the day of delivery that he with interest from June 26, 1918.

ANNOTATION.

Right of seller to ship goods after notice of repudiation by buyer.

I. Action for damages, 1230.
II. Action for purchase price, 1231.

I. Action for damages. The reported case (BARBER MILL. Co. v. LEICHTHAMMER BAKING Co. ante, 1227) sustains the right of the seller of goods to be delivered at a distant point, to ship the goods notwithstanding notice from the buyer of his repudiation of the contract, and, upon the buyer's refusal to receive them, to resell them, although before shipping, but after receiving notice of the buyer's repudiation of the contract, the seller might have sold the goods at the place of shipment without loss, and, the market price having dropped while the goods were in transit, the goods were sold at a considerable loss. It will be observed that the decision is upon the assumption that the buyer did not give the seller notice to resell the flour at the place of shipment.

A case very similar in effect to the reported case (BARBER MILL. Co. v. LEICHTHAMMER BAKING Co.), and in which the doctrine of this case

finds support, is John A. Roebling's Sons' Co. v. Lock Stitch Fence Co. (1889) 130 Ill. 660, 22 N. E. 518, holding that, although the buyer gave notice to the seller of the cancelation of a contract for the purchase of a large quantity of fence wire, the seller might nevertheless ship the wire to the buyer and, upon the latter's refusing to accept it, resell the same and charge him with the difference between the contract price and that realized at the sale at destination, providing the sale was fair and in good faith, and made in the manner best calculated to secure the real value of the property. The rule is here stated: "Where one party to a contract gives notice before the time of performance arrives that he does not intend to perform, the other party may treat such notice as a breach and bring his action, or he may decline to accept such notice as a breach, and may insist that the contract shall continue in force up to the time fixed for its final performance, holding the party refus. ing to perform responsible for the

consequences of such refusal. One tract, it was held that the seller had party to a contract cannot, by simply no right to go on and make further refusing to carry out his part of it, purchases, and incur expense, and compel the other party to rescind it. throw the risk of the property upon The latter has a right to keep it alive, the buyer, and thereby enhance the notwithstanding such refusal."

damages at the latter's expense, withThe rule that the buyer cannot by out any benefit to the former. The notice of cancelation preclude the doctrine is asserted that, while a conseller from performing the contract of tract is executory, a party has the sale finds some support in Kadish v. power to stop performance on the Young (1883) 108 Ill. 170, 43 Am. Rep. other side by giving an order to that 548, where the court held, in an action effect, by subjecting himself to such by the seller to recover damages for damages as will compensate the other the refusal of the buyer to accept the party for being stopped in the pergrain sold him, when properly ten- formance at that point or stage in the dered, that the buyer of a quantity of execution of the contract. The party barley, by giving notice to the seller thus forbidden cannot afterwards go of a repudiation of the contract, could on and thereby increase the damages, not impose upon the latter the duty and recover such increased damages then to sell the barley if he had it on of the other party. hand, or to enter into another contract It will be observed that some of the for delivery of the barley at the time cases cited in the next subdivision, in the buyer was to take it. In consider- which the action was for the purchase ing the question, and after holding price, employ language, apparently that the buyer could not, by a notice without reference to whether the of this kind, breach the contract of action is for the purchase price or for sale in a way that would be binding damages for breach of the contract, upon the seller, the court said that if

supporting the view that it is the duty the party is not compelled to accept of the seller to accept the repudiation the declaration of the other party to of the contract and refrain from ena contract that he will not perform it, hancing the damages by further peras a breach, it must logically follow formance. that he is under no obligation to re

II. Action for purchase price. gard that declaration for any purpose. See also cases cited infra, II., which

By the weight of authority, where uphold the right of the seller in such an executory contract of sale is recircumstances to recover the purchase pudiated by the buyer at a time prior price.

to delivery of the goods by the However, in Faulk v. Richardson

seller to the carrier for transporta(1912) 63 Fla. 135, 57 So. 666, it is

tion to the buyer, the seller canheld that it was the duty of the seller

not pass title to the goods by making not to have an automobile shipped

delivery to the carrier so as to entitle from the factory, where the buyer had

him to maintain an action to recover notified him of the cancelation of the

the purchase price. order therefor prior to such shipment.

Georgia.- Oklahoma Vinegar Co. v. The court said that, for aught that

Carter (1902) 116 Ga. 140, 59 L.R.A. appeared, the cancelation of the order

122, 94 Am. St. Rep. 112, 42 S. E. at the time the seller was notified

378; Rounsaville v. Leonard Mfg. would have entailed but nominal loss

Co. (1907) 127 Ga. 735, 56 S. E. to either party; hence there was no

1030; Bixler v. Poulas (1919) 23 Ga. proper basis for allowing a substan- App. 633, 99 S. E. 138. tial recovery.

Illinois. Thorn Danzinger See upon this point, Danforth V. (1893) 50 Ill. App. 306. Walker (1864) 37. Vt. 239, where the Massachusetts. --- Barrie v. Quinby buyer gave notice countermanding a (1910) 206 Mass. 259, 92 N. E. 451. contract for the sale of articles which Michigan.--Mayo v. Latham (1909) the seller had to buy to fill the con- 159 Mich. 136, 123 N. E. 561.

V.

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