Echard Coal & Coke Co. v. Mudge

Citations

• 234 Pa. 86
• 82 A. 1110
• 1912 Pa. LEXIS 615

Syllabus

<p>Contract — Breach—Set-off—Affidavit of defense.</p> <p>1. Where a contract for the sale of coke provides for deliveries in certain monthly instalments running for six months, and a suit is brought before the termination of the six months for deliveries made in the second, third and fourth months, an affidavit of defense is insufficient which avers -that, after the deliveries for which suit was brought, the plaintiff had notified defendant that it would make no further deliveries, and in fact made no further deliveries, and that although the defendant had not been damaged as yet by the breach of contract, yet if in the future it desired other deliveries and the price of coke should advance in the meantime, and the plaintiff refused to make deliveries, the defendant would be damaged to the extent of the difference between the contract price and the market price of coke at a time it might in the future order the coke.</p> <p>2. In such a case if the defendant considered the breach of the contract as final when the plaintiff gave notice that it would make no further deliveries, the damages by the breach were fixed at the date of the notice, and as defendant admitted that no damage had been suffered at the time the suit was bought, it could of necessity offset no loss. If, on the other hand, the defendant seeks to fix its damages as of the date that it demands shipment of the coke, then it must give to the plaintiff the opportunity to ship as of that date. If it seeks to keep the contract alive for the purpose of determining its damages as of the future date, then it must keep it alive for the purpose of permitting the plaintiff to fulfill its contract and ship coke as of that date, if it sees fit.</p>