Alexander v. Shell Company

SCOVEL, J.,

pro

tem.

This is an action for damages for breach of contract. On March 21, 1927, plaintiff -and defendant entered into a written agreement for a period of one year during which time plaintiff agreed to buy from defendant and defendant agreed to sell to plaintiff all the gasoline the latter might require for use or resale at his service station located east of Holtville in Imperial County at a price of six cents per gallon less than the current retail price thereof in Holtville. Deliveries were made under the contract until May 28, 1927, at which time defendant

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refused to make further deliveries. At the trial it appeared that subsequent to May 28, 1927, and until March 21, 1928, plaintiff purchased gasoline for sale in his service station from various other dealers and it was stipulated that he could at all times have purchased as much gasoline as he desired at the retail price of twenty-three cents. It also appeared that plaintiff on one day prior to the breach of the contract by defendant sold 300 gallons of gasoline at the price of twenty cents per gallon, which was three cents under the current retail price. The total amount of gasoline purchased for resale during the period above mentioned was 17,955 gallons, the price paid therefor by plaintiff being approximately two cents per gallon more than he would have paid had defendant furnished gasoline in accordance with the contract. The jury returned a verdict in plaintiff’s favor in the sum of $3,000. From the judgment entered thereon defendant appeals.

It is the contention of defendant that the verdict is not supported by the evidence, asserting that the damages sustained by plaintiff are capable of exact measurement under sections 3308 and 3354 of the Civil Code. Section 3308 of the Civil Code provides that the damage caused by the refusal of a seller to deliver personal property where the price has not been paid in advance is the excess in the value thereof to the buyer over the amount which would have been due to the seller Under the contract if it had been fulfilled.

Section 3354 of the Civil Code provides that in such a case the value of the property to a buyer is deemed to be the price at which he might have bought an equivalent thing in the market nearest the point of delivery at such time after the breach as would suffice with reasonable diligence for him to make such a purchase. Defendant asserts that plaintiff’s damages therefore are the difference in the price he actually paid for gasoline purchased subsequent to the breach and the price that he would have paid had the gasoline been purchased from the defendant under the contract.