
    James M. Granberry, Administrator, v. James M. Frierson.
    1. CONTRACT EXECDTOBr. Failure to receive the property by vendee. Sight of vendor to re-sell or rescind. Where the time of delivery in the sale of cotton was not fixed. Held, if the owner gave the purchaser notice of his readiness to deliver the cotton, and he failed to receive it, after a reasonable time he may give notice and re-sell at the purchaser’s risk, or treat the contract as rescinded.
    2. Same. Se-sale without proper cause. Damages. If the sale he made under circumstances as will not authorize the owner to regard the contract as rescinded, and for a better" price, in an action for damages the purchaser will be entitled to the difference between the agreed price and that received, less the reasonable cost and expenses of the re-sale.
    3. Charge of Court. Error to re-call the jury and re-charge without their request or that of'counsel. It was error to recall the jury and repeat to it a portion of the charge, the jury not asking and the defendant objecting to it.
    Case cited: Swaggerty v. Catón, 1 Heis., 202.
    FROM SMITH.
   Turney, J.,

delivered the opinion of the Court.

If the defendant agreed to sell and the plaintiff to buy the cotton, but the time of delivery was not fixed, the defendant would then have the right to notify the plaintiff to pay the price and receive the cotton, and if the plaintiff failed to do so in a reasonable time, the defendant might, at his election, give the plaintiff notice and re-sell the cotton at his risk, or treat the contract as rescinded by the assent of tbe plaintiff, implied from bis failure to execute his part.

If the circumstances were such as not to authorize the defendant to regard the contract as rescinded, but she nevertheless re-sold the cotton for a better price than that contracted to be given by the plaintiff, in an action therefor the measure of the plaintiff’s damages would be the difference between the agreed price and that received by. the defendant, less the reasonable costs and expenses of the re-sale. We observe no other material error in the charge.

It was error, to recall the jury and repeat to it a portion of the charge, the jury not asking and the defendant objecting to it. This case falls strictly within the rule in Swaggerty v. Caton, 1 Heis., 202.

Reverse the judgment.  