Central Lumber Co. v. Arkansas Valley Lumber Co.

Citations

• 86 Kan. 131
• 119 P. 321
• 1911 Kan. LEXIS 196

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sales — Rescission by Seller — Notice to Buyer Before Time for Delivery — Mitigation of Damages. If before the time for delivery arrives the seller notify the buyer that a portion of the goods will not be delivered it is the duty of the buyer to mitigate damages by going into the market and buying other goods, if he is able to do so.</p> <p>2. -Rescission by Seller — Notice to Buyer Before Time for Delivery — Mitigation of Damages — Action by Buyer— Burden of Proof. In an action by the buyer for damages occasioned by the seller’s refusal to deliver, the burden rests upon the seller to show that, after notice that the contract, would not be filled and before delivery, the buyer might have-protected himself from loss by purchasing other goods.</p> <p>3. -- Refusal of Seller to Deliver — Damages — Time of Measurement. In the absence of proof by the seller of the character just stated the damages should be assessed as of the date when, under the contract, the goods should have been delivered.</p> <p>4. -Rescission of Seller for Default of Buyer. Under a contract contemplating delivery in several carload lots,, to be paid for in part on receipt of the invoice for each car and the balance on receipt of the car, the seller is not obliged to make further delivery when the buyer is in default, which has not been waived, in his payments for previous shipments.</p> <p>5. - Rescission by Party Guilty of First Breach. If the seller has been guilty of the first breach of the contract and be himself in default, which has not been waived, he can not claim the right to rescind because payments for deliveries subsequent to his default have been withheld.</p> <p>■6'. -Pleading Default on Specified Day Waives Previous Default. If in an action for damages for refusal to deliver the buyer elect to plead default and repudiation of the contract by the seller on a specified day, he is bound by his pleading. He waives previous defaults on the part of the s