Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-14

4
: In so doing, or can the defendants
as a matter of right, claim the benefi
thereof? As held in Dustan v. Nc
Andrew, A ~ Y, 70, upon the fail
ure Of purchaser to perform a con
tract for the sale of personal prop
erty, the vendor, as a general rule
has the election Of three remedies
% To hold the property for the pur
chaser, and to recover of him tn
entire purchase money; (2) to tell II
after notice to the purchaser, as hi
agent for that purpose, and recove
the difference between the cOntrac
price and that realized on the sale
90, to retain 1t is his own, and re
cover the difference between the con
tract and market prices at the time
and place of delivery. Getting II Par
sons on Con, 484; Sedgwick on Dam.
282; Lewis X Grelder, 40 Barb my
sos; Pollen V. Leroy, 30 ~ Y. 549.)
In the case at bar the plaintiff
chose and the trial court applied the
third rule. In Havemeyer v. Cunning
ham, 80 Barb. IN. W, 515, in an ac-
tion of damages for the breach of a
contract to sell an invoice of sugar
brought by the vendee against the
vendor for failure to deliver the sugar
1t was held that the rule of damages
for not delivering the sugar was the
difference between the contract price
and the market value on the day of
delivery, and that this rule could not
be varied by an offer of defendants
to sell to the plaintiff at price below
the value on the day of delivery. Mr..
Justice lngraham at page 522 says:
The plaintiffs had right to a de-
livery of the property purchased at
the stipulated price, and the defen-
dants could not relieve themselves
from the consequences of their refusal
to deliver, by an offer to sell at a
higher price, although less than the
] subsequent market value. Such an
offer, If accepted by the plaintiffs
before the time of performance ar
rived, might have exposed them to the
charge OF having abandoned the first
contract"
The rules of damages apply with
| equal force to both buyer and seller,
and Krebs Hop company had the right
to demand and receive the stipulated
price upon a delivery of the hops
which were rendered by 1t, according
to the terms of the contract, and de-
fendants had no right to any adYan-
tage to be gained by offering to make
new contract. 1t has been held that
where new contract Is made by the
parties in regard to the same subject
matter which entirely supersedes the
llrst contract, no action can be main
tanned on ground of breach of the
first contract, Consumers Cotton-Oil
Co. V. Ashburn, 81 Fed. 331; 26 C. C.
A. 436; Note 35 Cyc. 615. In the last
mentioned case 1t was claimed that
there was a contract of September
IL, 1898, for sale by the company to
Ashburn of 2600 tons of hulls at $275|
per ton, and 600 tons of meal at S1725
per ton, and that a subsequent con-
tract was made by the parties for the
sale of 100 tons of hulls at $4.O0 and
800 tons of meal at $4,000. In an ac-
ton by Ashburn for damages for the
failure of the company to deliver the
property according to the first con-
tract, the trial court, at the request
OF counsel for the company, gave the
following instruction: THE Jury in
this case are instructed, as a matter
or law, that where contract has been
made between two persons, and at n
subsequent period another contract
having reference to the same subject
matter but changing the relations of
the tirst contract is entered into, the
last contract controls or rescinds the
first, though there be no such effect
expressed between the parties '
To which the court added You
VIII deterine whether or not, at the
time OF making the second contract
1t was the intention of the parties
making the contract to waive or mod |
lily the first contract, and whether II
was the intention of the parties IN
make new contract, separate and
independent of the first, and without
any relation thereto"
In regard to this modification Of
the instruction requested. II Is said
The question was, and is here;
What was the legal effect of the sec
ond instrument on the first? Did the
second supersede, abrogate and take
the place of the first contract as n |
matter of law? II the legal effect of
the second contract, referring IN and |
covering the same general subject |
matter as the first contract, was that |
Il took the place Of the first contract |
then the intention Of the parties Is
not material, We think the effect of
the second contract was, as contended |
Tor by the counsel ftI the company |
that 1t superseded the first entirely |
When he entered into the second
contract he lost all rights he might |
nave claimed under the first If he |
desired to insist upon his rights under .
the first contract, he should have /
stood by 1t, insisting on its perform ]
ance, and not have made subsequent |
arrangement"
In United States V. International
Con. Co.. 1856 U. S, S0S, SO9, the fol- Il
lowing excerpt shows the view of |
that court upon similar question:
Nor does the fact that in making
nus second contract, the relator pro- Il
tested that he had rights under the Il
nrst better his position II he had Il
any such rights and desired to main
Ialn them, he should have abstained i
from putting himself In a position
where he voluntarily took advantages
OF the second opportunity to secure
,he work A party cannot avoid the
Iesa consequences of his acts by