Capper v. Manufacturers Paper Co.
Citations
- 86 Kan. 355
- 121 P. 519
Syllabus
<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Sales—Breach—Cancellation—Waiver.—Under a contract to furnish for the publication of a newspaper 720 tons of paper during one year with a leeway of 5 per cent over or under in quantity per year, the shipments to be at the rate of 60 tons a month, more than the last amount was shipped for several months, but the purchaser, though calling attention to the matter, accepted the paper. Held, that such acceptance amounted to a waiver of the right to complain after-wards of such overshipments.</p> <p>2. Sales — Wrongful Cancellation by Seller — Measure of Damages. In such case, on cancellation of the contract and refusal to ship, if there be no market at the place of delivery the buyer may purchase in the nearest market and the measure of his damages is the difference between the price there and the contract price.</p> <p>3. Contracts — Cancellation—Waiver — Question of Fact. The court instructed that if the purchaser failed to make payments as provided in the contract, the seller had a right to cancel unless such failure had been waived, and that if the jury should find from the evidence that anything said or done under the contract induced plaintiff (the purchaser) to believe that this condition had been waived or that strict compliance would not be insisted upon, the defendant would be estopped from afterwards claiming for nonperformance. Held, not subject to the complaint that the court was thereby leaving it to the jury to determine a question of law.</p> <p>4. Special Questions — Judicial Discretion. -It is within the discretion of the trial court to refuse or withdraw special questions calling for evidential reasons for particular findings.</p> <p>5. Pleadings — Objection to Evidence — Demurrer—Answer. In an action for breach of a contract containing reciprocal obligations, the failure to allege performance on plaintiff’s part should be called to the court’s attention by demurrer rather than by objection to evidence; a
Judges: West
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6 cases in this archive cite this case.
- Brock v. FrancisSupreme Court of Kansas· 1913-04-12· cited 14×
- Augusta Oil Co., Inc. v. WatsonSupreme Court of Kansas· 1970-01-24· cited 8×
- Ennis-Baynard Petroleum Co. v. Plainville Mill & Elevator Co.Supreme Court of Kansas· 1925-04-11· cited 7×
- Wallingford v. Bushton Grain & Supply Co.Supreme Court of Kansas· 1917-02-10· cited 6×
- Johnson v. DumondSupreme Court of Kansas· 1930-05-03· cited 3×
- J. I. Case Co. v. BodeckerSupreme Court of Kansas· 1933-03-11· cited 1×
Cites
10 cases in this archive are cited by this case.
- Norrington v. WrightSupreme Court· 1885-10-26· cited 264×
- Evans v. MoseleySupreme Court of Kansas· 1911-03-11· cited 36×
- Howard v. CarterSupreme Court of Kansas· 1905-03-11· cited 29×
- Matheney v. City of El DoradoSupreme Court of Kansas· 1910-06-11· cited 19×
- Triple Tie Benefit Ass'n v. WoodSupreme Court of Kansas· 1908-11-07· cited 16×
- Missouri, Kansas & Texas Railway Co. v. MurphySupreme Court of Kansas· 1907-05-11· cited 15×
- Central Lumber Co. v. Arkansas Valley Lumber Co.Supreme Court of Kansas· 1911-12-09· cited 10×
- Taylor v. WoodburySupreme Court of Kansas· 1912-01-06· cited 10×
- Minor v. Edwads & PriceSupreme Court of Missouri· 1848-07-15· cited 8×
- Smith v. SmithSupreme Court of Kansas· 1907-04-06· cited 2×
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