Opinion No. 42.
FAILURE TO DELIVER ONE INSTALLMENT CAUSE FOR CANCELLING ORDER.
Question—We purchased a quantity of lumber to be shipped in February, March and April in equal monthly shipments. The first shipment has not been made in February and we would like to know whether this entitles us legally to cancel the entire contract or only the February lot. In other words, does the breaking of a contract in one instance cancel the entire contract?
Reply: When goods are to be delivered in instalments the courts of this State hold that the seller’s failure to deliver one instalment justified the buyer in refusing to accept that tender and also in rescinding so much of the contract as is yet unfulfilled. It is one contract, not several, and the seller cannot insist on a right to deliver only such instalments as he finds it convenient to deliver and to have them accepted. The buyer has not agreed to pay anything at all for part of the goods. His contract is that he will pay a certain amount for all of them. If he is not to have all of them, it is quite conceivable, and is often a fact that any part less than all is of very much less than proportionate value to him; it may have practically no value to him at all. In any event, the seller has agreed to do a certain service and the buyer has agreed to pay a certain sum of money. The court will not infer from that an obligation to pay half the money for half the service or to accept half the service on any condition, if the other half is to be, or has been, withheld.
Opinion No. 43.
Question—A customer places an order with the mill for November, December, January and February, proportionate shipments. The mills are unavoidably delayed in executing the order, but are finally able to make shipment of practically the whole order in February. The customer refuses to pay invoices for all the goods shipped in February, but claims dating on proportionate amounts in April, May and June. Is he justly or legally entitled to the dating and could he hold the goods subject to sellers’ order?
Reply: There seems to have been no clause in this contract releasing the mill in case of such a delay as has occurred. In the absence of such a clause the buyer was justified in refusing to accept the goods when all of them were shipped in February. He is entitled to hold the goods subject to the seller’s order, or to return them. He cannot, however, force another contract upon the seller than that which was actually made. The mill may take back its goods or allow the buyer to accept them upon such new terms as may be agreed upon. The buyer is justified in receiving the original contract. This is upon the supposition that the buyer has not during the past four months said or done anything to lead the seller to suppose that he was satisfied with the delay, that he would accept all of the goods as readily in February as if shipment had been made in strict accordance with the terms of sale. If he has done that he is estopped now from making any objection to the tender.
Opinion No. 44.
AMOUNT OF CLAIM FOR DAMAGE AGAINST CARRIER.
Question—We made a shipment via two connecting railroads. When it reached a junction prior to delivery at destination, i. e., a point on the second road, was badly or entirely damaged in a wreck, and our customer asked that we immediately replace the shipment, which we did, and made another shipment of the same kind of lumber four days later, but in the interim between the time of the first shipment and the time we received the replacing order from the customer, the price advanced, and in our second invoice we naturally charged the customer for the advance. The claim department of the railroad now offers to settle with us at the original invoice price of the first shipment and declines to entertain a settlement at the advanced price. We claim that our position is entirely legal in the matter, and that we are entitled to the advanced price for the shipment that was lost, the same representing the value of the goods at the time the goods were destroyed.