
    McClelland et al. v. The Picher Lead and Zinc Company, Appellant.
    
    Vendor and Vendee: contract, breach of. Where a quantity of mineral is sold and part delivery made, and the vendee makes a resale to a third person of the residue in the vendor’s hands without notifying the latter, it would be a breach of the contract for the vendor to deliver it to such third person. And if the vendee refuses to accept the residue, the vendor may sell it and recover of the vendee the difference between the contract price and that for which the mineral sold.
    
      Appeal from Jasper Circuit Court'—Hois. Jos. Cravens, Judge.
    Aeeikmed.
    
      Harding & Butler for appellant.
    
      Galen Spencer for respondents.
   Sherwood, J.

Plaintiffs sold the defendant company three hundred thousand pounds of lead ore at a certain figure. Defendant received two hundred thousand pounds of the ore, but refused to receive the remainder, in consequence of which plaintiffs sold the same, and now sue to recover the difference between the contract price and that at which the mineral sold. The defendant company sold one hundred thousand pounds of the mineral to Murphy, but failed to notify plaintiffs ■of such sale, and consequently cannot complain that the mineral sold to Murphy was not delivered to him at his request. Such delivery, without notification of the fact of such proceeding from defendant to plaintiffs, would have been an unwarrantable breach of the contract by plaintiffs. The declarations of law given on the part of plaintiffs, and the one given on the part of defendant, put the case very plainly, and as the finding of the issues was for the plaintiffs, we affirm the judgment.

All concur.  