BUYERS’ POSITION WHERE, ON ARRIVAL, LUMBER IS NOT IN ACCORDANCE WITH CONTRACT.
Question—A has sold to B a carload of lumber to be delivered on or before November 24, payment cash promptly after arrival and examination. The lumber arrives on the 24th, and A gives on that day to B an examination order for the lumber, which examination order B accepts. B uses proper diligence in trying to examine, but, owing to congestion of cars at the depot the lumber is not unloaded for several days, and he can only examine it on the 28th. He finds it to be of a quality inferior to the grade contracted for and rejects it, and his rejection is sustained by arbitration. B claims the right to go into the market on the 28th, buy a carload of lumber of the grade contracted for and demand from A the difference between the contract price and the price paid by him on the 28th. A maintains that he can only be held responsible for the difference between the contract price and the ruling market value on November 24, the last date stipulated in the contract. Who is right?
Reply: This lumber was sold for delivery at the buyer’s end of the route, the purchase price was to be paid only after arrival and examination. The carrier was an agent of the seller, and he did not give the buyer an opportunity to make examination until November 28. No valid delivery was made, or could have been made, before November 28, inasmuch as an examination by the buyer was to precede such delivery. When delivery was tendered on November 28 the lumber was found to be such as the buyer was at liberty to reject. He was, accordingly, authorized to go into the market on that day and buy at the price then prevailing in order to place himself in as good a position as he would have been in if the seller had done his duty and had not been guilty of a breach of contract. The buyer has a right to demand that the seller shall place him in this position.
Opinion No. 37.