#### MINOT FLOUR MILL COMPANY, a Corporation, Appellant, v. HENRY AUSLANDER, Respondent.

(226 N. W. 496.)

Opinion filed July 26, 1929.

*F. B. Lambert*and *James T. Harrison,*for appellant.

*333*JE. B. Sinlder*and *G. O. Br&hlce,*for respondent.

Nuesslb, J.

This is an action for damages for the breach of a written contract. Defendant, answering, admitted the making of the contract, denied a breach on his part and counterclaimed for damages for an alleged breach thereof on the part of the plaintiff.

The plaintiff is engaged in the manufacture and sale of flour in the1 *334city of Minot. The defendant is a baker having Ms place of business in the same city. On August 16, 1926, plaintiff and defendant entered into a written contract, for the breach of which this action was brought, whereby the plaintiff sold to the defendant and the defendant bought 1000 barrels of flour in bulk at $7.60 per barrel, defendant to furnish the containers at least 14 days before delivery, the flour to be delivered to the defendant at his bake shop as needed within eight months from the date of the contract'and to be paid for in cash as ordered out. The contract, among other things, provided that “the seller may cancel this contract if there is any unpaid past due bill or if the property and assets of the buyer are in liquidation. If the buyer fails to furnish shipping instructions ■ or packages as herein provided the seller may, (1) cancel the contract or (2) terminate the contract, the buyer to pay to the seller the difference between the contract price and the seller’s cost of replacement. ... If the buyer shall fail or refuse to pay for any shipment under this contract, then the seller shall resell such shipment and the buyer shall pay all loss, damage or expense arising from such refusal. If shipments are not made by the seller within the time of shipment unless for cause beyond the seller’s control, the buyer may ‘(1) cancel the contract,' or (2) terminate the contract, the seller to pay to the buyer the difference between the contract price and the market 'value of the commodity covered by the contract at the date of default at the point of delivery. . . .” The defendant during several years 'preceding had bought more or less flour from the plaintiff, and on August 16 when the contract in suit was made the defendant was indebted to the plaintiff about $1900. There was also in existence at' this time a prior' similar contract between the parties for 200 barrels of flour at $7.70 per barrel on which only 99 barrels had been delivered. The evidence tends to show that the defendant kept no books to speak of -and relied mainly upon the bookkeeping of the plaintiff to ascertain the state of accounts between them. When the contract in suit was made the defendant inquired as to how much flour remained to be delivered under the prior contract and was advised that there was a small qliantity yet to be delivered. After August 16 flour advanced somewhat in': pried and in September and October it was worth about 30 c'éntsiper ba'rrel more than' the price stipulated in the *335contract. Thereafter it declined in price. During, the remainder of the life of the contract the market price was somewhat less than the contract price. Defendant’s business requirements were from 5 to 14 barrels of flour a day. On Saturday, September 25, he needed some flour. He called the plaintiff’s office over the telephone and asked that enough to meet his needs over Sunday be delivered. Then followed the conversation about which this law suit revolves. Defendant’s testimony with respect thereto is as follows:

> “I told him (plaintiff’s manager) to send me some flour. He said ‘We got to have some money.’ I said ‘If you don’t send me the flour open account send it O. O. D. and I pay on delivery.’ He say We got to have some money.’ I say Well if you don’t want to send the flour you can keep your flour. I send you a check for $200 on account of the flour on the new contract.’ He says ‘We are not going to do no such thing.’ ”

Defendant then testified that on the following Tuesday he mailed a check for $200 to the plaintiff and further testified:

> “Q. And is that the check you sent pursuant to the conversation you had on Saturday?

> “A. Well I told him on Monday or Tuesday I send a check.

> “Q. And you did do that?

> “A. Yes.

> “Q. Did you have a letter with it?

> “A. No, I don’t had that. I said him through the phone I going to send check on Monday, or Tuesday for $200.

> “Q. And you told him that was on this contract?

> “A. Yes.

> “Q. And for flour ?

> “A. Yes.

> “Q. And after he got this check you demanded flour from him on that contract, did you ?

> *“A.*Yes, sir.

> “Q. What did he say? .

> “A. Well you got to pay the old account first.

> *336“Q. And be wouldn’t deliver any flour on tbe new contract until tbe old account bad been paid ?

> “A. No, sir.”

It is conceded that no deliveries were made under tbe new contract. On tbe 12tb of April, 1921, just prior to tbe expiration of tbe period within wbicb deliveries were to be made under tbe new contract, plaintiff notified the defendant that it bad flour to fill tbe contract and would require tbe defendant to receive and pay therefor or pay damages for bis failure to do so. _ On April 16, 192*7, tbe date of tbe expiration of tbe contract, flour was worth less than tbe contract price. At that time tbe plaintiff bad bn band about £>00” barrels.

Tbe plaintiff in this action seeks to recover tbe difference in price between tbe contract price and tbe market value of flour on April 16, 1927, and for the expense it was put to in selling tbe 1000 barrels of flour wbicb the contract called for. On tbe other hand, defendant contends that tbe plaintiff and not be breached tbe contract; that be was forced to buy at an enhanced price to meet bis requirements and asks for damages on account of such alleged breach.

At tbe close of defendant’s case and again at tbe close of tbe whole case tbe plaintiff moved tbe court for a directed verdict in its favor and against tbe defendant on both tbe main cause of action and tbe counterclaim. This motion was denied. The cause was submitted to tbe jury. Tbe jury found against tbe plaintiff on tbe main cause of action and awarded damages to tbe defendant on tbe counterclaim. Judgment was entered on the verdict as returned. Thereafter tbe plaintiff moved for judgment notwithstanding tbe verdict or in tbe alternative for a new ‘trial; Tbe court granted tbe motion for judgment notwithstanding tbe verdict as to the counterclaim and denied both branches of tbe motion as to tbe main cause of action and ordered that tbe judgment theretofore entered be modified accordingly. Thereupon a modified judgment was entered dismissing both tbe main cause of action and tbe counterclaim and for costs in favor of the ■ defendant. Plaintiff appeals from this judgment and from tbe order denying its motion for judgment notwithstanding or for a new trial.

Tbe trial court held that the jury by its verdict found thát tbe plain- . tiff and not tbe defendant bad breached tbe contract and that tbe evi*337dence in tbe record was sufficient to sustain such finding, but ordered judgment for tbe plaintiff notwithstanding tbe verdict on tbe counterclaim on tbe ground that there was no competent evidence of damage to tbe defendant on account of such breach.

Plaintiff on this appeal strenuously urges that tbe “evidence is not sufficient to sustain tbe verdict as returned; that in fact it affirmatively appears there was a breach of tbe contract by the defendant and not by tbe plaintiff.

In cases of this character questions of fact are primarily for tbe jury, and tbe jury having returned a verdict that verdict will not be disturbed if there is any credible evidence which will reasonably sustain it. In tbe instant case- tbe trial court held upon tbe plaintiff’s-challenge that the evidence was sufficient to sustain the verdict. In-considering tbe propriety of tbe verdict and of tbe trial court’s determination that tbe evidence was thus sufficient, this -court must, of' course, take that view of tbe evidence which is most favorable to the-defendant. His case rests upon bis own testimony, supported by such corroboration as the record otherwise affords. We must consider this-testimony as .trui^unless tbe remainder of tbe record demonstrates that it is incredible. If it is accepted as being a credible recital of what was said and done by and between tbe defendant and tbe plaintiff’s agents, tbe verdict must stand. If it is incredible then tbe verdict cannot stand. See Rattie v. Minneapolis, St. P. & S. Ste. M. R. Co. 55 N. D. 686, 215 N. W. 158.

There is no question but that tbe parties entered into tbe contract sued upon. Tbe defendant admits this but contends that be was at all times ready, willing and anxious to perform but that tbe plaintiff' failed and refused to carry out tbe contract unless tbe defendant first discharged Ms prior indebtedness, and that under tbe terms of the-contract it- was not necessary for him to do this. Notwithstanding the-defendant’s positive testimony heretofore referred to, tbe remainder of tbe record refutes bis theory as to tbe facts. At tbe time tbe contract in suit was made a prior contract calling for deliveries of flour was in existence. The parties contemplated that this contract should be fulfilled before deliveries were to begin on the new contract. The defendant says that be inquired at tbe time of the execution of the latter as-to bow much flour remained to be delivered under tbe old contract and *338that the plaintiff agreed to make these deliveries. On September 25 when the conversation vital to this snit was had, the defendant required Hour. He says that at that time he offered to pay for flour on the new contract as the same was delivered but that delivery was refused unless the old indebtedness was paid. His testimony also is that he then said he would send a check the next week. Notwithstanding the fact that no flour was delivered by the plaintiff and he had to procure flour elsewhere, on the Tuesday following he sent a check for $200. He enclosed no letter with this check. Tie says that in the conversation on the 25th he directed that the check was to be applied on the new contract. In this he is wholly uncorroborated. He testifies positively that thereafter no flour was delivered though- he made a demand for same and sent 50 sacks in which to put it. He does not claim that there was any later conversation with the plaintiff’s agents respecting the matter. On the other hand, plaintiff denies that there was any conversation with respect to the new contract and denies that there was any offer on the part of the defendant to pay for flour upon delivery. It is clear that when the $200 check was received by the plaintiff it was applied on the old indebtedness. It is-likewise clear that; $h October 1st 50 sacks, 25 barrels, of flour were delivered by the pláintiff to the defendant. Though defendant positively denies this delivery the written evidence conclusively establishes that it was made. Subsequently on October 15 defendant paid $250 and again on November 12 he. paid $200 and again on December *1*he paid $50. Other deliveries of flour were made to him by plaintiff: 1 barrel on October 29, 5 barrels on November 2, 12^ barrels on November 24 and 5 barrels on December 7. The defendant also denies these deliveries, but again the written evidence is conclusive against him. He admits that his signatures to the receipts showing these deliveries are arrthentic and admits he received the flour described in the receipts, but says that the dates are not correctly stated. He has no record or memorandum to sustain his statements. He relies wholly on his memory. Subsequent to the 1st of November flour had declined in price and thereafter at all times during the contract period was lower than the price called for in the contract. On December 1st defendant entered into a contract with the Eussell-Miller Milling Company for flour of the same quality as that which the plaintiff was to furnish under the contract and at a price *33915 cents per barrel cheaper than tbe contract price. The record, also demonstrates that the defendant was exceedingly slow in the payment of his bills, whether to the plaintiff or to his other creditors. On November 13, 1925, he owed the plaintiff $71.95 on account and on September 25, 1926, this indebtedness had increased to. $1909.22. In the meantime, though he had a contract for flour with the plaintiff, he bought and entered into contracts to buy large quantities from other mills and dealers. On December 16 plaintiff brought suit to recover the amount due on account of the transaction between it and the defendant. The account as between it and the defendant on that date 'was set forth in the complaint. This account shows payments* and deliveries as above stated. The defendant stipulated that the account was correct and that judgment might be entered against him for the amount of indebtedness as shown there and subsequently discharged .such judgment. Thus on the whole record it appears that the defendant must have been in error when he testified as he did respecting the conversation on September 25 and subsequent occurrences, and thus the evidence is not sufficient to sustain a finding that there was no breach of the contract by the defendant and that there was a breach by the plaintiff. However, we do not feel justified in ordering judgment notwithstanding the verdict. The order denying the plaintiff’s motion .for a new trial will therefore be reversed and a new trial will be granted, costs to abide the event.

Bueeie, Ch. J., and Dube, Biedzell, and CheistiaNSON, JJ., concur.