Dambmann v. Rittler

Yellott, J., delivered the opinion of the Court. A suit was instituted in the Court below by the appellees against the appellants; the plaintiffs claim ³⁸¹ ing damages for an alleged breach, of contract. The contract is set forth in the declaration. The defendants demurred to the declaration, and the demurrer being overruled and leave granted to plead over, a judgment was subsequently entered in favor of the plaintiffs.

The record discloses the following facts: The appellants agreed to sell and deliver to the appellees, during the month of September, 1888, from three to five hundred tons of acid phosphate. By the terms of the contract, the appellees were “to give ample notice of their wants twenty-four hours ahead of the time specified for delivery of each order;” and cash was to be paid on delivery. The phosphate was to he “filled into buyers’ bags and delivered to buyers’ drays in sellers’ factory.” Three hundred tons were delivered and paid for in cash on delivery. The appellants then informed the appellees that they would decline to deliver any more.

The appellees denied their right so to decline, and on the 22nd of September, 1888, notified the appellants that they would exercise their option to take the remaining two hundred tons, and requested the appellants to deliver the same. The appellants refused to deliver the remaining two hundred tons, and suit was brought hy the appellees to recover damages for breach of the contract. The only question really involved in controversy and presented for determination, is whether there was such a contract as can be enforced in a Court of law. Three hundred tons of phosphate had been delivered by the defendants and paid for hy the plaintiffs.

The defendants, hy the terms of the contract, were to deliver, upon notice from the plaintiffs, additional quantities of phosphate, not exceeding two hundred tons in all. The plaintiffs had an option to make a demand for the deliver}1- of the remaining two hundred tons of phosphate or any portion of it. The plaintiffs were not ³⁸² bound to make a demand for delivery but if they did so, the defendants had agreed to deliver the article. It seems to be a settled principle