Lumber Legal Opinions

by Unknown

Question.—A customer called at our yards and arranged to buy six cars of lumber, asking that one car be shipped at once. He took this car, but refuses to order the balance out as per agreement. He offers to pay for what he has already had, but he says we cannot hold him for any more because the contract was not in writing. Is he right?

Reply: This buyer can be held for the value of the six cars. A written contract or memorandum is not necessary where part of the goods have been delivered and accepted. There are three ways in which a sale of goods for $50 or more may be made valid and binding: (1) By a written contract or memorandum; (2) by delivery and acceptance of part of the goods; (3) by payment of part of the purchase price. Thus a buyer sometimes pays a small part of the price at the time of the agreement, “to bind the bargain,” as he says, and it has that effect.

Opinion No. 86.

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.

NOTICE TO AN AGENT IS NOTICE TO THE PRINCIPAL

Question.—A, a shipper in the South, ships to B, in New York, a carload of lumber at a price based on delivery f. o. b. New York City. The material is offered to B on a lighter at the agreed upon point of destination, and B, on inspecting it, comes to the conclusion that it is not what he ordered, and refuses to accept it, simply telling the railroad that the material is not what he ordered, and refuses to unload. B does not notify the shipper, A, and the latter knows nothing of B’s rejection or refusal to accept until about a month later, when he receives a notice from the railroad that B has rejected the material. A claims that B should have notified him immediately by mail or telegram that the material was not what he ordered, but B claims that he was not compelled to do so and that the fact that the railroad did not notify A until a month after was no concern of his. Is he right?

Reply: There is no rule of law known to us which would have required the buyer to notify the seller of his determination not to accept the goods in this case. If the buyer had taken the goods from the carrier he would have been bound to notify the seller of this subsequent rejection. If delivery had been made at the shipping point instead of f. o. b. destination, so that the carrier should have been agent of the buyer and not of the seller, the buyer’s duty to give notice would have been the same. As the case actually stands it is this: The seller himself or his agent, which amounts to the same thing, tenders the goods to the buyer and the buyer rejects them without having taken them into his custody. The seller or his agent immediately knows that they are rejected. How could notice add anything to that knowledge? If it is the seller’s agent who knows, and if the seller himself does not know, that is because the seller has not given proper instructions to his agent or because the agent has failed to follow them if they were given. In neither case is the buyer to blame. He has notified the seller’s agent that the goods are refused; that is all he can be required to do. If the refusal is not justified the seller has his remedy, of course. If it was justified the seller has sufficient notice of it. Our correspondent says the seller complains because the buyer did not notify him “immediately by mail or telegram that the material was not what he ordered.” That is absurd in any case. The seller knew as well as the buyer, and knew before the buyer did whether the goods sent were such as the buyer had ordered or not. Why should he be notified of a fact that he knew already.