IT IS TOO LATE TO CLAIM DAMAGE FOR DELAY IN SHIPMENT WHEN LUMBER IS ACCEPTED.
Question.—We took an order from a customer for ten cars of lumber to be shipped one car every two weeks. The first three cars were shipped on time, but there was a lapse of four weeks before the fourth car got out and weather at the mill delayed our getting the balance out as per agreement, although we finally got off all the cars. When the delayed shipments began to arrive our customer complained of the delay, and said he would charge us back with any cost he had to allow his customer. We objected, but our customer said we agreed to time deliveries, and would hold us to same. He took in all the shipments, but now wants to charge us with a loss he claimed he allowed his customer.
Reply: If the lumber was offered to the buyer at a time later than any date agreed upon at time of sale, the buyer could have refused to accept it, and would have had a claim against the seller for damages occasioned by the delay. On the other hand, the buyer might accept the goods, notwithstanding the delay, if he chose to do so. He had no option except one of these two, accept the goods and pay for them, or reject them as not having been sent in time to constitute a fulfillment of his order. He could not accept the goods at any other than the contract price. This is the situation in which the case would have stood if there had been no correspondence between the ordering of the goods and their shipment. It is barely possible that the correspondence may contain some modification of the original contract, introduced into it by mutual consent, which would give the buyer the right he now claims. If the original contract was allowed to stand as made then the buyer has mistaken his remedy if he had any remedy at all. The goods were offered in fulfillment of the contract. He could accept them as such, or reject them. Having rejected them, it is possible that he would have had a claim against the seller for failure to deliver the goods in time. This much, however, is perfectly well settled. The buyer had no right to the goods at all except in fulfillment of his contract. If he accepts them, the contract is fulfilled and he cannot turn about and demand damages because it is not so. If he thinks the delivery is not a good one, because of delay, let him refuse it and then say that the contract has not been carried out. It has been or it has not been, and his acceptance of the goods shows that it has been.
Opinion No. 87.