LIABILITY OF SHIPPER WHERE PART OF SHIPMENT IS ADMITTED BELOW GRADE.
Question.—I received from a customer an order for a carload of lumber of a certain grade. A fair sized car would be 14,000 feet. The car arrives and 2,000 feet of the lumber is admitted by me to be of a grade lower than the order called for. Can I compel my customer to accept the balance of 12,000 feet, which is up to the requirements of the order? He claims that inasmuch as the car I have offered is not all up to grade, I cannot compel him to accept even so large a proportion as 12,000 feet, notwithstanding the fact that 12,000 feet will still be a pretty fair sized car of lumber.
Reply: According to this statement the shipper undertook to carry out an order and deliver a carload of lumber. According to the admission 2,000 feet of the carload were contrary to the terms of the contract. Under the circumstances a carload of lumber has not been delivered and we doubt very much if you can find a way to compel acceptance of a carload of lumber that is admitted on the face of it as not being strictly according to the terms of the contract.
Opinion No. 76.