Opinion No. 91.
A BUYER HAS A CLAIM WHEN HE ACCEPTS A DRAFT ON INFERIOR LUMBER.
Question.—We bought a car of lumber through a broker. Terms were: Sight draft with bill of lading attached for three-fourths of the amount of the invoice, the balance to be paid on arrival and inspection. We accepted the draft on presentation and when the car arrived we instructed our truckmen to draw the lumber in. Upon examination we found that it was all more or less below grade. We wired shippers accordingly and asked for instructions. We also wrote them a letter to the above effect and told them that we could not use the lumber and that we would hold it for their instructions. Do we need to keep the shipment? Can we compel sellers to return us the amount of the draft and freight charges?
Reply: The buyers are not bound to accept any lumber not in accordance with the order. They have a valid claim against the sellers for the amount already paid towards the purchase of the goods, for the amount expended for freight and for any other useless expense to which the buyers were put as a result of the sellers’ failure to do their contract duty. The buyers also have a claim for damages, if any, caused by the breach of contract on the part of the sellers. The latter were bound to supply lumber regularly sold and accepted by the trade under the terms covering the grade in question, and their failure so to do was an actionable breach of contract.
Opinion No. 92.
CONTRACT OF SALE.
Delivery by Installments—Successive Recoveries by the Vendee Not Permissible.
When a party contracts to deliver goods by installments, for example—Several carloads of lumber to be shipped at different intervals but fails to deliver one or more of such installments, the vendee may repudiate the contract and sue for damages. If he brings the action prior to the time for the delivery of the last installments, he can only recover for such installments as are past due and such recovery bars him from afterwards bringing an action and recovering thereon for the remaining installments or deliveries.
Opinion No. 93.