Dunn v. Daly

Foote, C.— Daly and Dunn entered into the following written contract: “This agreement, made this fifth day of May, 1885, between John Daly of Eureka Hill, Plumas County, California, and Henry S. Dunn of Johnsville, same county and state, wherein said John Daly agrees [642]for the term of one year to give said Henry S. Dunn the hauling of all his freight from the junction of Long Valley to Eureka Hill or Johnsville, at the rate of seventy-five hundredths dollars per one hundred pounds, and for the next two years to give five hundredths dollars more than the Plumas Eureka gives for the hauling of their freight. And the said Henry S. Dunn agrees to haul all of said John Daly’s freight from the junction in Long Valley to Eureka Hill or Johns-ville, for the term of one year, for the sum of seventy-five hundredths dollars for one hundred pounds, and for the next two years at five hundredths dollars per one hundred pounds more than the Plumas Eureka pay for their freight during the season of the year that freight teams are running and the roads are passable. And furthermore agrees to give said Daly’s freight the preference of all other freight.

(Signed) “John Daly.

“H. S. Dunn.”

From the findings, it appears that during the first year provided for in this contract, Daly, the defendant, furnished to Dunn, the plaintiff, for carriage forty tons of freight, which, being delivered, the price for its hauling, as by the contract stipulated, was paid. The plaintiff did not, during this time, comply with his contract in always giving the defendant’s freight the preference in being hauled, which resulted in damage to the defendant to the amount of fifty dollars.

In the beginning of the freighting season of the next year, 1886, the defendant notified the plaintiff he had sold his mercantile establishment at Eureka Hill, and that he had no more freight for him.

In July of that year, the plaintiff, at the place from which he was to have hauled it under the contract, demanded the freight of the defendant, and the warehouseman refused to comply with the demand.

The plaintiff being ready and willing to-comply-with [643]