Willman

In the District Court the judge presiding granted a motion for a directed verdict in favor of the plaintiff individuals doing a co-partnership business under the name of Premier Popcorn Company. The court referred the amount of damages to the jury which fixed the amount at the sum of $10,800. Willman, the defendant, brought this appeal.

His main contention is that it was error for the trial court to direct a verdict for appellee and to find as a matter of law that the contract sued upon had neither been modified nor rescinded, that this was a question for the jury. He also complains of the instructions to the jury on the measure of damages. We are of the opinion that there is no clear error in the instructions as given or in the court’s refusal to give tendered instructions. We shall not further consider them.

The record discloses that the parties signed a contract in Portland, Oregon, on May 11, 1953, whereby Willman agreed to buy and the Alvers agreed to sell 7,200 100-pound bags of popcorn, to be delivered in twelve monthly installments of 600 bags each, beginning in October, 1953. The price agreed upon was $9.00 per 100 pounds, FOB seller’s place of business, Watseka,…