STONE, Circuit Judge.
Damage for Breach of Cpntract. A writ of error based on alleged right of larger recovery by plaintiff below from judgment in its favor for $986.97. Tried to the court on stipulation of facts and brief undisputed oral testimony.
The Contract. July 14, 1914, Lhe Liberal Elevator Company of Hutchinson, Kan., sold to the Wichita Mill & Elevator Company, of Wichita Falls, Tex., 25,000 bushels of wheat to be delivered f. o. b. Galveston, Tex., during that month subject to the following rule of the Kansas Grain Dealers’ Association:
“Elite 7. Incomplete Shipments. "When the seller finds he will not be able to complete a contract within the agreed limit, it shall be his duty to so advise Hie buyer by mail, telephone, or telegraph, whereupon it shall he the duty of the buyer to at once elect either to buy in or cancel the deficit, or to extend the contract to cover said deficit. Should the seller fail to notify the buyer of his, the seller’s, inability to complete a contract for shipment, as in this rule above provided, the said contract shall remain in force unless and until completed, extended, bought in, or canceled.”
The Breach. After shipping 7,055 bushels, the seller, on July 29th, informed the buyer of its inability to complete its contract in July because oí a railway embargo*. No further deliveries were* made,' and after an extended correspondence the buyer on September 3d, being refused further performance, bought in the deficit at Galveston. The suit is for the expense and price difference in buying in this deficit. Recovery was allowed by the court below on the basis of a breach on August 10th and measure of damage as of that date. The buyer claims breach on September 3d and measure of damage as of that date.
The Railway Bmbargo. Before stating the position of the parties, it will be useful to' dear away a false issue which has been presented by both sides. While it lias its importance as a circumstance in the consideration of other points in the case, the railway embargo* as a defense is not an issue in this court. It was determined by the trial court to be no defense, and no other conclusion could sustain the judgment below. The determination on that point was in favor of plaintiff, and the case is here solely on its writ of error.
The Controversy. The dispute is solely as to whether the breach and measure of damage is to be taken as of August 10th or as of September 3d. It hinges on the rights of the parties under rule 7, supra, and the dealings between them from July 29th to September 3d (revealed in correspondence) as controlled by that rule. Under rule 7 the defaulting seller could not cancel the contract; the buyer could. The buyer never exercised its right to cancel under the contract, for, although negotiations for cancellation were under way at various times, they were without results. When these negotiations failed, the seller on August 10th demanded disposition orders for the grain, whereupon the buyer attempted to extend the contract. The seller refused to recognize this extension. If the extension was binding, the buyer’s contention is correct; if not, that of the seller must prevail.
Was the contract extended by the buyer, so that it was in force upon September 3d? The buyer contends it was. The seller contests this [102]*102because, as it claims, (a) the original contract was replaced by a new contract; (b) whatever right of extension existed, either under the original or under the new contract, was not exercised seasonably; (c) any such right was not exercised properly, because the extension was indefinite as to time.
[1] (a) New Contract. The theory of the seller is that on August 2d the buyer requested that the wheat be held for a few days, to which it (seller) acceded, and from this arose a new contract. As it will be necessary, in considering the subsequent points in this case, to set' out the correspondence (August 2d to August 8th) relied upon by the seller to sustain this contention, it will not be duplicated here. That correspondence shows this situation: When it began, the time for delivery under the original contract was two days past; the seller had assured the buyer five days earlier that it would be prevented by a railway embargo from shipping until August 2d, but would get the wheat out as soon as the railroads would receive it; the duration of the embargo after that date seems to have been uncertain, or at'least unknown to these parties; between the above dates the embargo continued, so that the seller could not have shipped; during the same period there was a con gestión at Galveston, so that the buyer did not desire shipment; that under these circumstances the buyer, in two wires reaching the seller on the same day, requested, first, that shipments be temporarily held up, and, second, that sale be canceled; that on the day of such receipt the seller wired and wrote buyer, in its wire ignoring the request to delay and stating it had the wheat to “apply on sales as soon as embargo is raised,” and in its letter barely acknowledging such request and saying, in confirming its wire, that it had the wheat “ready to apply as soon as the Galveston embargo is raised,” and “would very much prefer to deliver this wheat to you as soon as it is possible for us to do so”; that on August 4th the bufeV again wired request for delay and offer for cancellation at stated price; that to this the seller replied, again ignoring, beyond bare acknowledgment, the request to delay, and saying it had the wheat stored in its elevator “ready to ship any time, consequently would not feel like giving you any money to cancel this sale”; that at no time did the seller in its correspondence ever refer to such request for delay, except to simply acknowledge its receipt. This reveals no acceptance of the offer, if such it was, to delay. Nor can the fact that the seller did delay be of any force in this connection, for such delay was caused by its absolute inability to ship, and not by its compliance with the buyer’s request. There was no new contract.
[2] (b) Seasonable Extension of Contract. The buyer was notified at Wichita Kails, Tex., by letter mailed at Hutchinson, Kan., July 29th, that the seller would be unable to complete its contract within the contract time. No extension by the buyer under the contract (rule 7) was attempted until August 10th and 11th. Had the right of extension expired before that time ? Rule 7 provided that, upon notification from the seller of his inability to complete contract within time limit, it (buyer) should “at once elect to buy in or cancel the deficit, or to extend the contract to cover said deficit.” Was this election exercised “at once” within the meaning of the contract?
“At once” does not mean instantaneously, but with reasonable ex[103]*103pedition under all of the circumstances. 5 C. J. 1439, and citations; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 Sup. Ct. 833, 46 D. Ed. 1193; Empire State Surety Co. v. Northwest Lumber Co., 203 Fed. 417, 121 C. C. A. 527 (9th C. C. A.). Each case must necessarily rest largely upon its own facts; therefore authorities are usually of little aid.
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STONE, Circuit Judge.
Damage for Breach of Cpntract. A writ of error based on alleged right of larger recovery by plaintiff below from judgment in its favor for $986.97. Tried to the court on stipulation of facts and brief undisputed oral testimony.
The Contract. July 14, 1914, Lhe Liberal Elevator Company of Hutchinson, Kan., sold to the Wichita Mill & Elevator Company, of Wichita Falls, Tex., 25,000 bushels of wheat to be delivered f. o. b. Galveston, Tex., during that month subject to the following rule of the Kansas Grain Dealers’ Association:
“Elite 7. Incomplete Shipments. "When the seller finds he will not be able to complete a contract within the agreed limit, it shall be his duty to so advise Hie buyer by mail, telephone, or telegraph, whereupon it shall he the duty of the buyer to at once elect either to buy in or cancel the deficit, or to extend the contract to cover said deficit. Should the seller fail to notify the buyer of his, the seller’s, inability to complete a contract for shipment, as in this rule above provided, the said contract shall remain in force unless and until completed, extended, bought in, or canceled.”
The Breach. After shipping 7,055 bushels, the seller, on July 29th, informed the buyer of its inability to complete its contract in July because oí a railway embargo*. No further deliveries were* made,' and after an extended correspondence the buyer on September 3d, being refused further performance, bought in the deficit at Galveston. The suit is for the expense and price difference in buying in this deficit. Recovery was allowed by the court below on the basis of a breach on August 10th and measure of damage as of that date. The buyer claims breach on September 3d and measure of damage as of that date.
The Railway Bmbargo. Before stating the position of the parties, it will be useful to' dear away a false issue which has been presented by both sides. While it lias its importance as a circumstance in the consideration of other points in the case, the railway embargo* as a defense is not an issue in this court. It was determined by the trial court to be no defense, and no other conclusion could sustain the judgment below. The determination on that point was in favor of plaintiff, and the case is here solely on its writ of error.
The Controversy. The dispute is solely as to whether the breach and measure of damage is to be taken as of August 10th or as of September 3d. It hinges on the rights of the parties under rule 7, supra, and the dealings between them from July 29th to September 3d (revealed in correspondence) as controlled by that rule. Under rule 7 the defaulting seller could not cancel the contract; the buyer could. The buyer never exercised its right to cancel under the contract, for, although negotiations for cancellation were under way at various times, they were without results. When these negotiations failed, the seller on August 10th demanded disposition orders for the grain, whereupon the buyer attempted to extend the contract. The seller refused to recognize this extension. If the extension was binding, the buyer’s contention is correct; if not, that of the seller must prevail.
Was the contract extended by the buyer, so that it was in force upon September 3d? The buyer contends it was. The seller contests this [102]*102because, as it claims, (a) the original contract was replaced by a new contract; (b) whatever right of extension existed, either under the original or under the new contract, was not exercised seasonably; (c) any such right was not exercised properly, because the extension was indefinite as to time.
[1] (a) New Contract. The theory of the seller is that on August 2d the buyer requested that the wheat be held for a few days, to which it (seller) acceded, and from this arose a new contract. As it will be necessary, in considering the subsequent points in this case, to set' out the correspondence (August 2d to August 8th) relied upon by the seller to sustain this contention, it will not be duplicated here. That correspondence shows this situation: When it began, the time for delivery under the original contract was two days past; the seller had assured the buyer five days earlier that it would be prevented by a railway embargo from shipping until August 2d, but would get the wheat out as soon as the railroads would receive it; the duration of the embargo after that date seems to have been uncertain, or at'least unknown to these parties; between the above dates the embargo continued, so that the seller could not have shipped; during the same period there was a con gestión at Galveston, so that the buyer did not desire shipment; that under these circumstances the buyer, in two wires reaching the seller on the same day, requested, first, that shipments be temporarily held up, and, second, that sale be canceled; that on the day of such receipt the seller wired and wrote buyer, in its wire ignoring the request to delay and stating it had the wheat to “apply on sales as soon as embargo is raised,” and in its letter barely acknowledging such request and saying, in confirming its wire, that it had the wheat “ready to apply as soon as the Galveston embargo is raised,” and “would very much prefer to deliver this wheat to you as soon as it is possible for us to do so”; that on August 4th the bufeV again wired request for delay and offer for cancellation at stated price; that to this the seller replied, again ignoring, beyond bare acknowledgment, the request to delay, and saying it had the wheat stored in its elevator “ready to ship any time, consequently would not feel like giving you any money to cancel this sale”; that at no time did the seller in its correspondence ever refer to such request for delay, except to simply acknowledge its receipt. This reveals no acceptance of the offer, if such it was, to delay. Nor can the fact that the seller did delay be of any force in this connection, for such delay was caused by its absolute inability to ship, and not by its compliance with the buyer’s request. There was no new contract.
[2] (b) Seasonable Extension of Contract. The buyer was notified at Wichita Kails, Tex., by letter mailed at Hutchinson, Kan., July 29th, that the seller would be unable to complete its contract within the contract time. No extension by the buyer under the contract (rule 7) was attempted until August 10th and 11th. Had the right of extension expired before that time ? Rule 7 provided that, upon notification from the seller of his inability to complete contract within time limit, it (buyer) should “at once elect to buy in or cancel the deficit, or to extend the contract to cover said deficit.” Was this election exercised “at once” within the meaning of the contract?
“At once” does not mean instantaneously, but with reasonable ex[103]*103pedition under all of the circumstances. 5 C. J. 1439, and citations; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 Sup. Ct. 833, 46 D. Ed. 1193; Empire State Surety Co. v. Northwest Lumber Co., 203 Fed. 417, 121 C. C. A. 527 (9th C. C. A.). Each case must necessarily rest largely upon its own facts; therefore authorities are usually of little aid. However, this much may be gained from them: The “circumstances” comprehend both those in mind at the time the contract is made and also those present at the time the party acts under such provision of the contract (see above citations); and it has been held that in the latter class is included any conduct of the other party to- the contract which would influence the action of the one who, must act “at once.” McCormick Harvesting Mach. Co. v. Warfield, 33 App. Div. 513, 53 N. Y. Supp. 737 (3 months’ delay); Bennett v. Ins. Co., 67 N. Y. 274 (26 days’ delay). Also see Peterson v. Hansen, 15 N. D. 198, 107 N. W. 528.
What were the “circumstances” attending the election by the buyer to extend this contract ? They are revealed in the communications between the parties from July 29th to August 14th, inclusive. Such parts of the correspondence as bear upon all questions in the case are quoted below in the margin.1
[104]*104[3] From this correspondence we form these conclusions: That the parties at all times regarded the contract in existence; that the occasion for the exercise of the buyer’s option arose on the receipt of the seller’s letter of July 29th; that at that time the delay, as stated' by the seller, would be only for two or three days; that when it developed there would be longer délay of uncertain duration the parties began negotiations for cancellation; that failure of those negotiations finally resulted in the request from the seller for disposition; that this request resulted in the communications upon that same day, the day following, and four days later, extending the contract under the buyer’s election therein. The contract gave the buyer the absolute right to extend the contract if it acted promptly. If there was here any delay, it resulted from causes actively participated in by the seller. It was its (seller’s) assurance of the very brief delay of two days over the contract time that would have made an immediate election under the contract by the buyer unnecessary. Beginning with the end of that period, it was an active party in attempting to arrange some amicable [105]*105adjustment of the situation which would have made any extension useless. Those negotiations were not in accord with any powers given by the contract, but were commendable efforts to arrive at a mutually satisfactory solution of the difficulty. Promptly upon their failure the buyer exercised its election to extend the contract. Under these circumstances it acted within the terms of the contract.
[4] (c) Proper Bxlension under Contract. The seller claims that the attempted extension of the contract was not of the character allowed by the contract, since it was entirely indefinite as to time. It is true that the buyer, in making its extension, did not designate any certain date for its termination. Respecting this power of extension, the contract could hardly be broader than it is. It does no more than set out the condition which authorizes the exercise of the right and the requirement that it be then exercised promptly.
Ordinarily, where time of contract performance is limited, a failure [106]*106to complete within the period is a finished breach, with its attendant damage liability. However, this contract provided that the buyer might elect to waive the breach and extend the time for performance. The position of the seller regarding this contention is based upon a misconception of the meaning of the contract. This is not a contract where performance must be upon a certain day. If it were, th,e seller might be correct in its contention. But this contract provided for delivery during any day of July after its execution. Any extension unr der the contract was intended by it to be of similar character. This contract, by “extension,” means not the filing of a definite future date upon which delivery must be made, but an additional period during every day of which the seller may make delivery. In no way can the seller be injured by an extension; nor by,an indefinite extension, because every day of the extension is an additional opportunity, uncontrolled by the buyer, for it to perform its contract. The buyer does not have to grant any extension; it can claim the advantage of the breach caused by the seller. If it does extend, it can be for as short or as long a period as it may elect. If it chooses to set a definite date, that simply marks the end of the extension, and limits the time within which the seller must deliver. It is obvious that, if the delivery continues in default, the buyer would ultimately have to prescribe a definite date for terminating the extension. But there is no requirement in the terms of the contract, as expressed or as implied by law, to require-such date to be determined at the time the extension is granted, and the seller may on any day terminate the extension by full performance.
In this ca'se the buyer was eminently fair concerning this extension. More than once the seller expressed its willingness and desire to deliver as soon as the embargo would 'permit. In the midst of the embargo, when apparently neither party could estimate its duration, the buyer granted an indefinite extension until further notice at a time when it wanted the wheat as soon as it could get it. From that time on it stated the seller was “at liberty at all times” to deliver. In giving its “further notice” it was entirely reasonable. As soon as the embargo was lifted, and delivery made possible, the buyer repeatedly (from August 28th to September 2d) by wire requested delivery. Its requests were not even acknowledged. Finally, upon September 3d, it wired:
“Will extend your contract until September 15th, providing you wire us you will ship wheat. Otherwise please wire authority buy for your account. Must have definite understanding immediately.”
Seller ignoring this, the buyer on same date again wired :
“Account your failure to respond to our wires, will buy best advantage for your account wheat due us.”
To which, same date, seller wired:
“We consider contract to ship additional wheat canceled will not agree to extension of contract will not authorize you to buy for our account we are under no obligation to take any further steps in the matter.”
Whereupon the buyer went into the market and bought grain, with the resulting loss here in suit.
[107]*107[S] The extension was seasonably made, it was within the terms of the contract, it has been fairly acted upon by the buyer, the contract was breached by the seller on September 3d, and the measure of damage was of that date.
The judgment should be reversed and remanded, with instructions to enter judgment for plaintiff on the merits for $6,359.50 and interest thereon from the 3d day of September, 1914. .