#### United Flour Mills Company, Defendant in Error, v. Vaclav C. Kryda and George F. Kryda, (Defendants). Vaclav C. Kryda, Plaintiff in Error.

Gen. No. 19,221.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1913.

Affirmed.

Opinion filed March 31, 1914.

Rehearing denied April 15, 1914.

Statement of the Case.

Action by United Flour Mills Company against Vaclav C. Kryda and George F. Kryda for loss of profits on account of refusal of defendants to take two lots of flour under a contract of sale between the par*611ties. To reverse a judgment in favor of plaintiff, defendant brings error.

Abstract of the Decision.

1. Sales, § 284 * —remedies of seller. One of the courses open to a vendor where the vendee of goods refuses to take and pay for them is to keep the goods and recover the excess of the contract price over the market price.

2. Sales, § 341 * —when recovery for loss of profits for refusal of buyer to receive flour sustained by the evidence. In an action to recover for loss of profits caused by refusal of defendants to take flour contracted for, held that the question whether defendants were justified in refusing to take the flour because other flour taken was not of the quality required by the contract was passed upon by the jury, and that the finding of the jury was sustained by the evidence.

3. Sales, § 342 * —when instruction allowing seller to recover difference between contract price and cost of manufacture proper. In an action by a milling company to recover for loss of profits for refusal of defendants to take flour contracted for, where the case was tried upon the theory of plaintiff that it was entitled to the difference between the contract price and the cost of manufacture, and plaintiff showed there was a market for the flour at the place of delivery and what the market price was at the time fixed for delivery, held that the case should have been submitted to me jury on that basis.

4. Damages, § 244 * —when improper instructions harmless. Error in instructions as to the measure of damages, held harmless where the result reached by the jury was correct.

A. Zeman and Q. J. Chott, for plaintiff in error; Frank H. Culver, of counsel.

George E. Dawson, for defendant in error.

*

Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

Mr. Justice Clark

delivered the opinion of the court.