UNFULFILLED CONTRACT.

New Zealand Herald, Volume LIII, Issue 16169, 4 March 1916, Page 5

UNFULFILLED CONTRACT.

DELIVERY OF CHAFF.

JUDGMENT FOR PLAINTIFFS.

The questions at issue in the case <>! A. P. Donald, Ltd., of Auckland, v. Corry fend Co., Ltd., jf Blenheim, brought to recover damages f>r the non-fulfilment of a contract to d jliver 500 tons of chaff, made in 1914, were determined by a judgment delivered by Mr. Justice Cooper in the Supreme Court yesterday. At the hearing Mr. J. R. Reed, K.C., with him Mr. R. R. Bell, appeared for the plaintiffs, and Mr. C. H. Mills, of Blenheim, for the defendants.) His Honor found that the strict letter of the contract, namely, the shipment of iour trucks weekly from the beginning of July, was not insisted upon by either party. It •was quite clear that the parties waived tho delivery of the total quantity of chaxf by the end of December. The plaintiffs were willing to go on taking tho chaff till the contract was completed, but no definite •agreement was made for the extension of the time for delivery, though that was necessarily implied. In February, however, the defendants intimated through Mr. Corry that they could not deliver any more chaff under the contract. The plaintiffs claimed that the measure of damages was 'the difference between tho contract price of £3 17s 6d por ton, and the market price on February 7, 1915. Tho defendants contended that as less than the contracted quantity was delivered each month from July to December inclusive, the measure of damages was the difference between tho contract price and the market price at the date of Bach such short delivery. The plaintiffs' contention was that there was no actionable breach of contract until the defendants definitely refused to deliver any more chaff, whilo the defendants' was that a scries of causes of action exist, there being, it_ was aruued, a definite cause of action arising every week in respect of the short deliveries "during such week. In tho opinion of the Court, there was not any actionable breach of contract until tho defendant company definitely refused to deliver any more chaff. The damages must be assessed on the footing that the breach of contract occurred on or about February 7, 1915, and that the measure was the difference between the contract price of 77s 6d per ton and the market price on that date. The parties, he understood, would themselves asrree upon the amount. There must be judgment for the plaintiffs with costs.