A. L. Jones & Co. v. Cochran

33 Okla. 431, 126 P. 716 (1912)

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Nature of the Case

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Facts

P and D made a contract for P to deliver to D on January 1909, 31st day: 100 Bbls. Dark Red sets at $ 1.20 per 32 lb. bu.; 100 Bbls. yellow sets at $ 1.10 per 32 lb. bu.; 25 Bbls. white sets at $ 1.50 per 32 lb. bu. Following terms and conditions: Net cash, F. O. B. Chicago. Packages charged for extra. Second-hand barrels 20c each; 1 bushel crates 11c. each; new 2 bushel sacks 5c each. The sets to be in good merchantable condition at time of shipment; to be screened through 1 1/8 inch mesh sieve. If any of the sets are destroyed by fire or other unavoidable cause D will deliver the balance of the contract. D delivered 50 barrels of red onion sets, 60 barrels of yellow onion sets, and fifteen barrels of white onion sets, but failed and refused to deliver the balance under the contract. P sued D and recovered judgment in the trial court for $206.50 damages. D claimed he was unable to deliver the remainder of the sets under the contract because of an unavoidable shortage in his crop. D also testified that custom and usage in Illinois, where there is a shortage in crops so that all contracts cannot be fulfilled, is to prorate the crop on all contracts, as was done in this instance. D did not purchase and sell onion sets on the market, but sold only onion sets grown by him; it was the custom and usage among such growers in Illinois to sell their crops of onion sets before they were produced, and, where contracts for the sale of sets to be grown by any grower cannot be filled in full on account of shortage in the crop, to prorate the amount grown upon the various contracts of the grower, as was done in this case; and that such acts on the part of the grower relieves him from further liability under his contract. The trial court did not accept the evidence and P got the verdict. D appealed.