Linder

This is an appeal by the defendant, Morris Cooley, from a judgment in favor of the plaintiff, Reynold Linder.

The action is based on a written contract dated October 12, 1960, between plaintiff and his then partner, one William J. Cairns, producers of charcoal by the kiln method, and the defendant, a producer and wholesaler of charcoal. The agreement, in material part, provided that Linder and Cairns would sell and defendant would buy all charcoal produced by Linder and Cairns for the period of one year at the price of $43.50 per ton. Linder and Cairns agreed to load the charcoal on a conveyance of Cooley, and Cooley agreed to provide such conveyance and haul at his expense. If Linder and Cairns failed to deliver 50 tons of charcoal during any 30-day period, Cooley had the option to deem the contract breached or he could cancel without further liability. Cairns is not herein involved.

During the 30-day period from December 15, 1960, to January 15, 1961, plaintiff delivered 37.2 tons of charcoal which fell short of the contractual minimum quantity. Thereafter and until June 15, 1961, he delivered monthly quantities of charcoal which defendant accepted and paid for. On June 15,…