John Kellogg et al., Respondents, v. Robert Norman, Appellant

John Kellogg et al., Respondents, v. Robert Norman, Appellant. (Argued May 20,1878; decided May 28, 1878.) This action was brought to recover damages for the nonperformance of a contract for the sale and purchase of a quantity of oil cake. The material portions of the contract are as follows: “ Said first parties (plaintiffs) contract to sell to said second party (defendant) about 2,000 tons of good merchantable oil cake, of their manufacture, from domestic seed, packed in good well sewed gunny bags, and to deliver the same in good shipping order, free, alongside ships in New York, as follows : About 350 tons per month, from September, 1875, to February, 1876, both inclusive *■ * * being all the oil cake made by said parties at their mill at Amsterdam, from domestic seed, during the period named, excepting that said ¡parties may, at their option, reserve for their local meal trade a quantity not exceeding fifty tons per month.” Defendant received and paid for, at the contract price, nearly 2,053 tons. Plaintiffs did not avail themselves of the limits of their option to retain fifty tons per month ; they shipped to defendant about 18 5 A tons manufactured in February, which defendant refused to receive under the contract. Plaintiffs thereupon, upon notice, sold the same, and claimed to recover the difference between the contract price and the, market price. Held, that under the contract defendant was bound to take and pay for all the oil cake made by plaintiffs for the time agreed upon, in the absence of proof that the power of their mill was unduly urged; that the quantities specified were merely expressive of expectation or conjecture, and not controlling {II. 8. v. Dagmire, 1 Wall., 311; Gross v. Eglin, 2 B. & A., 107; Gaellim v. Daniel, 2 Cr. Mees. & Ros,, 61; McGonnell v. Murphy, 21 Weekly R., 609); that if the difference between the real and represented quantity in such case be very great it would show a mistake which it would be the duty of a Court of Equity to correct. (Thomas v. Perry, Peter’s C. C. R., 49-58.) E. T. Rice for appellant. W. S. Vandenburgh for respondents. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.