Page:Federal Reporter, 1st Series, Volume 10.djvu/237

 BAMMOND V. OLMSTEAD BROS. 225 �that they supposed that they had so informed him by telegraph. The defend- ants have not been in the habit of selling their own corn for future delivery. They usually cribbed a small crib, and also purchased, in the summer, corn which they were in the habit of sending to McCrea & Ce, to be sold as it ar- rived. Corn sold at the market rate, to be delivered in the future, is always sold in lots of 5,000 bushels, or multiples of 5,000. If smaller lots are sold for future delivery there must be a discount from the market rates. In 1878-9 the defendants had a crib of about 3,000 bushels. They sold corn to McCrea & Co. in September, October, and November, 1879, in addition to the 25,000 bush- els upon future delivery, as follows: �Sept. 10 1,354.06 bushels at 33^ cents. �" 11 427.08 « " 33i " �Oct. 13 381.34 " " 37| " �» 17 523.12 " "39 " �" 22 945.10 " " 46| « �" 23 947.08 " " 45| " �» 25 1,440.20 " ".45| " �" 28 944.46 " ''42 " �" 29 992.38 " " 41 " �" 31 415.20 " " 41| " �Nov. 3 395.10 « "421 " �" 11 484.46 " " 42| " �In the winter of 1879-80 the defendant bought a new lot of unshelled corn for the plaintifiE, so that, crediting hitn at the rate of 37 J cents for 14,492 bushels, lie ovired then $79, which he paid. �There is no dispute in regard to the sale of 10,000 bushels at 34| cents on September 6th. �This suit is brought to recover from the defendants the amount which the plaintff claims they received for his corn in excess of 37^ cents per bushel for 14,492 bushels, or damages for breach of con- tract. �The plaintiff claims damages because his corn would have amounted to more than 14,492 bushels had the defendants exercised the care required by the contract. He claims that there was or should have been an excess above 37J cents, because the defendants violated their instructions in selling at that sum, and did not send the balance to McCrea for sale, but sold it themselves from time to time ; and, lastly, if no insti-uctions were violated, they sold but 10,000 bushels at 37J, and the residue at a greater sum. �The first two positions are untenable. The plaintiff's case must rest entirely upon the third point. If 15,000 bushels of the plaintiff's corn were sold on September 20th, it was a sale in pursuance of exist- ing restrictions. �It is clear that the defendants sold on September 20th 15,000 bush- v.l0,no.2— 15 ��� �