1. The trial court erred, on an action for breach of contract, in failing to give a requested charge that nondelivery due to a contingency, the nonoccurrence of which was a basic assumption when the contract was made, applies only insofar as the seller has not by contract assumed a greater burden.

2. The evidence in this case establishes that if the defendant seller was excused from performance of the contract, or if the breach of contract is attributable to the buyer, the seller owes nothing, whereas if the alleged breach was charge able to the seller, the measure of damages is the difference between the contract and market price. The verdict in the sum returned by the jury is unsupported by the evidence.

In April, 1973, Stokes entered into two contracts with the appellant, identical except that one was for the sale and delivery of 1,606 bushels of No. 1 yellow soybeans at $3.10 per bushel and the other for 6,603 bushels at $3.00, to be delivered no later than December 31 to Farmers Mutual Exchange, Sylvania, Georgia. The place of delivery is elsewhere referred to as "the above Gold Kist, Inc. facility." The contracts, after stating liquidated damages for nondelivery, have this provision: "Notwithstanding the foregoing, if the producer is unable to deliver all or any part of the above quantity as contracted solely because of reasons beyond the producer's control, including an Act of God, the producer and Gold Kist, Inc. agree to settle at the difference between the price stated above for the quantity not delivered and the current cash market price for that quantity at the above Gold Kist facility on the date determined pursuant to (a) above," that being the earlier of either the date of notification of intent not to deliver or the first business date after December 31, 1973.

A delivery of 3,491 bushels was made in October, 1973, but by agreement this was not included in either contract. On November 7 Stokes tendered delivery of 500 bushels at the place specified which was refused because all of Gold Kist's bins were full and it had no place to store the shipment. Two days later there was again room for delivery and storage but it does not appear that the seller was aware of this fact. On November 27 there was an annual meeting at which Stokes and a representative of Gold Kist were present; there is a conflict of evidence on what passed between the two, the representative contending that Stokes told him there would be no more deliveries, and Stokes denying this fact while admitting that there was a joking conversation on the subject.

Two days later, on November 29, some 9,000 bushels of soybeans stored in Stokes' bins were damaged or destroyed by fire. Stokes thereafter tendered 2,600 bushels of the salvage to the plaintiff, which refused them as not in accord with grade specifications. There seems to be no serious contention but that the refusal was justified on this ground.

No further deliveries were tendered. On December 19, 1973, plaintiff filed suit alleging that defendant had repudiated the contract on November 27, and sought damages in the sum of $23,042.51 as the difference between contract and market price on that date. The jury returned a verdict of $3,149.10 and plaintiff appealed. This court initially affirmed on procedural grounds (Gold Kist v. Stokes, 135 Ga. App. 382 (217 SE2d 352)), following which the Supreme Court reversed our decision, 235 Ga. 643 (221 SE2d 49) and remanded the case to this court for consideration of the enumerations of error.

1. Code 109A-2--615 provides in part: "Except so far as a seller may have assumed a greater obligation . . .: (a) Delay in delivery or nondelivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made." The court charged subdivision (a) supra but failed on request to charge the italicized limiting clause. This was error. The contracts, after specifying the measure of damages for nondelivery generally, based on market price at the time of breach, further provided that, notwithstanding this, if the producer is unable to deliver the quantity contracted for solely because of reasons beyond his control, the measure of damages for failure to deliver is the difference between contract and market price on the day of breach. This is the ordinary measure of damages set by Code 109A-2--713 (1). Whether this clause placed a greater obligation on the seller than he would have had under subdivision (a) under testimony that the beans had been destroyed by fire, the cause of which was undetermined, is at the very least a jury question. The charge on the limitation was pertinent, material and relevant.

Fire which destroys the seller's factory (or, in this case, his storage bin) along with goods not identified to the contract (which these were not), and which thereby renders performance impossible, may be assumed to be a contingency the nonoccurrence of which was a basic assumption on which the contract was made. 67 AmJur2d 513, Sales, 362, n. 87. But this provision will not apply where the seller has assumed a greater obligation. To assume such an obligation, "a contract must contain an affirmative provision that the seller will perform the contract even though the contingencies . . . might occur." Mansfield Pro. Gas v. Folger Gas Co., 231 Ga. 868, 870 (204 SE2d 625). An affirmative provision in the contract that the seller agrees to pay stipulated damages upon the occurrence of an event making performance impossible necessarily implies that a breach of contract under those conditions is conceded, and places upon the seller a greater obligation than might otherwise exist.

Judgment reversed. Bell, C. J., and Stolz, J., concur.