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