
    [No. 18117.
    Department One.
    December 13, 1923.]
    J. C. Hatchard, Respondent, v. Raymond Veneer Company, Appellant. 
      
    
    Sales (82) — Performance of Contract — Quality of Goods — Evidence — Question fob Jury. A contract whereby the seller agreed to deliver a certain quantity of spruce veneer blocks at an agreed price, is not unilateral or void for want of mutuality.
    Same (143) — Breach by Purchaser — Measure of Damages — Instruction. The measure of damages for refusal to accept delivery of a certain quantity of spruce veneer blocks, sold at an agreed price, is the difference between the contract price and the market price at the time and place of delivery.
    Appeal from a judgment of the superior court for Pacific county, Hewen, J., entered December 22, 1922, upon tbe- verdict of a jury rendered in favor of tbe plaintiff, in an action on contract.
    Reversed.
    
      Welsh & Welsh, for appellant.
    
      John I. O’Phelan, for respondent.
    
      
      Reported in 221 Pac. 307.
    
   Mackintosh, J.

Respondent entered into a contract with tbe appellant whereby be agreed to deliver certain spruce veneer, blocks at an agreed price of $20 per thousand feet, board measure. His complaint alleges that he tendered delivery of approximately 90,000 feet, but tbe appellant refused to receive them, and this action is brought for damages in tbe full contract amount by reason of the appellant’s breach of tbe contract.

Tbe appellant justified its refusal to accept tbe tender of tbe blocks on tbe ground that they were not of tbe quality provided in tbe contract, and the jury returned a verdict in tbe full amount claimed.

It is alleged that the contract is unilateral and void for want of mutuality. We can dispose of this matter very simply by saying that the contract cannot be given such interpretation.

Equally readily can we dispose of the next contention, that the testimony shows conclusively that the .blocks tendered were not of the kind, character or quality provided in the contract. This was a disputed question of fact on. which there was a great deal of evidence and one on which the jury and not the court should pass.

The next contention is that the jury was improperly instructed as to the measure of damages. The court in its instructions allowed the jury to return_a verdict for the entire contract price, whereas the law is that the measure of damages in such cases is the difference between the contract price and the market price at the time and place of delivery. Schott Co. v. Stone, Fisher & Lane Co., 35 Wash. 252, 77 Pac. 192; Hess v. Seitzick, 95 Wash. 393, 163 Pac. 941; Yellow Poplar Lumber Co. v. Chapman, 74 Fed. 444. Justification is sought for the court’s instructions upon the theory that the blocks were valueless at the time and place of delivery. This argument can hardly be soundjn view of the fact, that, in order for the plaintiff to recover at all, the jury must have found that the blocks were of the quality called for by the contract, and it is hardly to be assumed, in the absence of proof (of which the record is devoid), that they were of no value.

For the error in these instructions, the judgment is reversed and the cause remanded for a new trial.

MaiN, C. J., Holcomb, TolmaN, and Parker, JJ., concur.  