Barnard & Lockwood v. Conger. whom the firm of Fields & Stephens do a large business in New York. The defense is, that Fields & Stephens are still the owners of the note, and that it was handed over to the plaintiff to bring suit in this Court. It was proved by Stephens, that this firm, having large dealings with the plaintiff, in New York, the note was assigned to him, and charged to his account. This action being brought by the indorsee against the indorser, there can be no objection to the jurisdiction of this Court. The indorsement by Fields & Stephens was made by the defendant in blank when the note was handed to the bank for collection, as an authority to the bank to receive the proceeds. The note having been returned to the owners, they filled up the blank indorsement, to the plaintiff. This they had a right to do; or if the note was sold to the plaintiff with a blank indorsement, the plaintiff, being the holder of the note, had a right to fill the blank indorsement at any time during the trial or before it. It is proved that the defendant applied to Stephens to intercede with the plaintiff for indulgence in the payment. The jury found for the plaintiff. Judgment. BARNARD & LOCKWOOD v. CONGER. Where a person has agreed to deliver a quantity of lumber at specified prices, and he fails to comply with his contract, the plaintiff is entitled recover in damages the difference in price between the lumber contracted for, and the market price at the place of delivery. If the market price at the place of delivery was as low, or lower, than the price agreed to be paid in the contract, the plaintiff will be entitled to no damages. The rule is, that no damages can be recovered where none have been sustained. Barnard & Lockwood v. Conger. Mr. Clark appeared for the plaintiffs. OPINION OF THE COURT. This action is founded upon a contract for the delivery of five hundred thousand feet of lumber, at Albany, in New York, at certain prices stipulated, dated 19th of April, 1854; to be delivered the same year before the close of navigation. Of the first and second quality, the defendant was permitted to deliver, at the prices stated, as he might choose. Thirtytwo dollars for the clear, per thousand feet, and twenty-four dollars for the second quality. Two hundred thousand feet of said lumber, which may be delivered, shall be counted at two dollars per thousand feet less than the prices above named, in consideration that the said Barnard & Son advanced to said Conger on the contract the sum of three thousand dollars, they charging interest on said advance from the payment, until the money shall be repaid by the delivery of that amount of lumber. The delivery to be made at the plaintiff's wharf in Albany. thou It was proved that in the summer and fall of 1854, the market price of clear lumber was thirty-five dollars sand feet;twenty-seven dollars per thousand for the second quality. Other witnesses stated that in September and October, 1854, lumber sold, first quality for thirty-four dollars per thousand, and second quality for twenty-four dollars. Boat loads sold, at first quality, thirty-two dollars, second quality, from twenty-two to twenty-three dollars per thousand. The Court instructed the Jury, that if lumber embraced by the contract was worth more in the market in Albany than the prices stipulated in the contract to be paid to the defendant at the period within which the lumber was to be delivered, the plaintiff was entitled to recover, by way of damages, the difference. But if the price of lumber in the Albany market was F. W. Backus v. Schooner Marengo. as low or lower than the prices agreed to be paid by the plaintiff, he suffered no damage by the failure of the defendant. If the plaintiff with the money in hand, could, in the market at Albany, purchase lumber at the same price that he had agreed to pay the defendant, he was entitled to no compensation, as he sustained no loss. A sale of lumber in small quantities or by retail, will not fix the prices in the present case; nor would prices paid for a much larger amount than is named in the contract, fix the price. This would bring down the price too low, while the retail price would place it too high. The true rule will be found in such quantities as provided for in the contract, and if you shall find that a purchase could have been made by the plaintiff, at the time the defendant should have delivered the lumber, at the contract or a less price than that agreed to be paid, at the place of delivery, the plaintiff is entitled to no damages. The three thousand dollars advanced, with the interest, it is understood will be satisfactorily arranged. The jury found a verdict for the defendant. FREDERICK W. BACKUS v. SCHOONER MARENGO. If the Appellant delay to perfect his appeal, so that the record is filed a very short time before the term of this Court, the Appellee may notice the cause for hearing or continue it, at his option. No one should take advantage of his own remissness, to the prejudice of the other party. Mr. Holbrook for appellants, Mr. Howard for respondents. OPINION OF THE COURT. On the 6th of June last, the notice of appeal in this case Chapin & Butts v. Norton et al. was entered in the District Court. The record was filed a day or two since, and a motion is now made by the Appellant to continue the cause. The rule on this subject declares, "that eight days' notice of hearing on appeal shall in all cases be given, by the service thereof on the adverse party, or on his proctor. "When an appeal from a decree in the District Court is interposed less than twenty days before the next stated session of this Court, the Appellee may, at his option, notice the cause for hearing at such session, on the first or either day thereof, or have the same continued to the next stated session. "When an appeal from the decree of the Distrct Court is interposed, twenty days before the next stated session of this Court, it may be noticed for hearing at such session by either party." As this case was appealed within less than twenty days before this term, the appellee has a right to notice the cause for hearing on the first day of Court, or to continue it as he may prefer. This avoids delay and is just. If the appellant do not file the record in time, the other party may continue the cause. The motion for a continuance is overruled. CHAPIN & BUTTS v. NORTON ET AL. Under a contract made by the complainants with the defendants, the complainants agreed to purchase all the lumber sawed by the defendants on Grand river, on the terms specified, taking it at the mill and transporting it to Chicago, &c. Among other conditions, the complainants agreed to furnish supplies for the hands of the defendants, &c., which, after about a year, they refused to do; on which the defendants abandoned the contract. Where one party refuses to do a certain thing, under the contract, which was necessary to enable the other party to perform his part of the contract, he may abandon the contract. And in such case the party first refusing, is liable to the other for damages. Chapin & Butts v. Norton et al. But such damages must be limited to the immediate consequences resulting from the refusal to perform the contract, and cannot extend to probable profits which might have been realized if the contract had been carried out. The party who abandoned the contract on the failure of the other party to perform in a material part, is not liable for damages. A large quantity of the lumber being in possession of the defaulting party, it would seem that he, having repudiated the contract, cannot afterwards claim the benefit of the contract, in disposing of the lumber on hand. Under any circumstances he would be entitled to a reasonable compensation for selling the lumber. In the process of a continuing contract, if accounts are received and adjusted without objection, it is too late to make an objection at the trial. And where an inconvenience is suffered by the delay of the other party, notice should be given. Messrs. Willing & Gray for complainants. OPINION OF THE COURT. This is a bill in Chancery, in which the complainants ask the foreclosure of a mortgage. On the 20th of February, 1850, the parties entered into an agreement substantially as follows:-The complainants are lumber merchants and reside in Chicago, and they entered into an agreement with the defendants, who owned a steam saw mill on Grand river, in the State of Michigan, and were engaged in sawing lumber, to purchase all the lumber that they should manufacture at their mill, for five years, on the following terms: 1. Five dollars per thousand feet was to be paid for merchantable; two dollars fifty cents for culls, and one dollar per thousand for pine laths. 2. The complainants were to receive the lumber at the mill and sell it in Chicago, and in addition to the above prices, were to pay the defendants one-half the net profits. 3. They were to procure vessels to take the lumber from |