Reply: This buyer has not, in our opinion, lost his right to select the route by which the goods shall be shipped to him. There is no question that his delay in giving such instructions has been unusually great, but the sellers on their part have given no indication of an objection to such delay. It is clearly their right now to demand that he send shipping instructions immediately and to inform him that they will send the goods by a route of their own selection if he does not name a route by return mail; then, if the buyer does not reply, or if he refuses to issue shipping instructions, or undertakes to repudiate the contract, the sellers will have a choice of three remedies: They may ship the goods to him by any suitable carrier and compel him to pay for them; they may inform him that the goods are held subject to his order, to be shipped in whatever manner and at whatever time he may select, and then compel him to pay for them, or they may name a time and place at which the goods will be sold at auction for his account, giving him sufficient opportunity to be present at the sale, and may then sell them at such time and place, holding him liable for the necessary expenses of advertisement and sale and for any amount, by which the selling price may be less than the contract price.
Opinion No. 12.
UNDER CERTAIN CONDITIONS THE ACCEPTANCE OF PART OF A DEBT DOES NOT RELEASE THE REMAINDER.
Question.—One of our customers recently sent us a check for less than the amount of his bill, saying in his letter that he was remitting the full amount due us. If he had taken advantage of the regular discount on his last purchase (which he did not do) the amount now due us would have been within a few dollars of the size of the check, but even then the check would not represent the exact amount due to us. He does not say in so many words that he is claiming a discount, just sends the check and writes, “enclosed please find amount of my bill to date.” Something of this kind happens rather frequently, and we would like you to advise us whether we must forego using that check until we can write and straighten out the matter with him. More is due to us than he has paid us, and it seems a hardship that we should be kept out of even this part of our claim during the week or month which it may take to have a full understanding with our customer.
Reply: The creditor, in a case of this kind, is justified in cashing the check and still demanding the amount yet due; this amount he can recover by suit if it is not paid voluntarily. The buyer, it seems, was not entitled to a discount, and he has not made a specific claim to any. Being indebted to a certain amount he simply sends a check for part of that amount. He does not say that he claims a discount. If this check for less than the full amount due had been accompanied by a demand that it be either accepted as payment in full, or else returned, a different question might have arisen; but even then the check might safely have been cashed under the facts of this case. This case is simply that of a man who owes $100 and who sends his creditor a smaller amount. The proper course for the creditor is to accept what is sent as a payment upon account and still maintain his claim for what is yet due.
Opinion No. 18.
BANKRUPTCY AVOIDS AN ASSIGNMENT FOR CREDITORS.
Question.—We made a sale to a firm who became embarrassed and offered a compromise to their creditors. We accepted the settlement offered, 25 per cent. cash and 25 per cent. by note at one year. The note given us was not paid and after some delay the concern now goes into bankruptcy. Please inform us whether our claim in the bankruptcy proceedings would be the note only or the full amount due under the original sale?
Reply: The compromise in this case, in so far as it has not been carried out, will probably be set aside and all the bankrupt’s estate be held liable to his creditors under the bankruptcy proceedings. It has been held that “an adjudication of bankruptcy at the instance of the bankrupt’s creditors on the ground of a general assignment, avoids such assignment and subjects the property assigned to the jurisdiction of the bankruptcy court to be administered under the Bankruptcy Act which the creditors have invoked.”
Opinion No 14.