Kemper Grain Co. v. Farmers' Grain & Elevator Co.

Citations

• 99 Kan. 712
• 163 P. 450

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Contract — Sale of Wheat — Breach—Futility of Tender — Tender Unnecessary. A contract for the purchase of wheat contained the provision that to make a valid tender a bill of lading must be proffered. The seller advised the buyer of its readiness and willingness to ship two cars of the grain covered by the contract and was notified not to ship, that the buyer would turn down the drafts and refuse to accept. Held, that under these circumstances a formal tender was rendered unnecessary, the settled doctrine being that a tender or demand otherwise indispensable is no longer required when its futility is shown.</p> <p>2. Same — Sale of Wheat — Breach of Contract — Right to Recover Damages. Although the seller upon such notification announced a rescission of the contract it shortly thereafter shipped to the buyer another car of the wheat which was accepted and paid for. Held, that this did not counteract the declaration of the buyer that it would not receive the wheat previously offered so as to entitle it to recover damages for its nonshipment.</p> <p>3. Same — Award of Damages — Findings—Evidence. An award of damages by the jury unsupported by the findings held not to be prejudicial error for the reason that the amount allowed was conceded by the party complaining.</p> <p>4. Same — Judgment Modified on Findings of Jury. The jury found that the defendant suffered damage in the sum of $167.68, loss on wheat refused by the plaintiff, but in answer to an express question how much damage they allowed therefor they answered “Nothing.” Held, that the defendant’s motion for judgment for $167.68 should have been sustained.</p>