James Higgins Co. v. Torvick

Mr. Justice McBride delivered the opinion of the court. 1. We think the court below erred in holding that there was not sufficient tender made by plaintiff. The evidence [277] tended to show that defendant had already sold his potatoes to another party, and had thereby placed it beyond his power to perform in any event. Moreover, the delivery and payment were by the terms of the contract concurrent acts. Plaintiff was to pay when the produce was delivered, not before. Under such circumstances, an offer to pay upon delivery, coupled with a willingness and present ability to do so, are all the law requires. This question is settled in this State, by the decision of this court in Catlin v. Jones, 52 Or. 337 (97 Pac. 546), which was decided since the trial of the case at bar in the circuit court. 2. The nonsuit, however, was correctly allowed upon the second ground stated. The term “about” has a somewhat flexible • meaning. Thus in a contract to convey 140 acres of land it was held that the term “about” meant an approximation to that number of acres and that 134 74-100 acres was too great a variation. Stevens v. McKnight, 40 Ohio St. 341. The term “about” used in a finding that a car load of lumber is about so many feet means “not far from.” Indianapolis Cabinet Co. v. Herrman, 7 Ind. App. 462 (34 N. E. 579). A contract for a sale of about 300 quarters of rye did not oblige the buyer to accept so large an excess as 50 quarters over the 300, but the excess should bear a very small proportion to the amount named. Cross v. Eglin, 2 Barn & Adolp. 106. In a contract to furnish 5,000 tons of rail road iron, it was stipulated that they were to be shipped at the rate of “about” 1,000 tons per month, beginning in February, but the whole to be shipped before August first of the same year. It was held that the contract required a shipment of 1,000 tons each month from February to June, and that a shipment of 400 tons in February and 885 tons in March justified a rescission of the contract. Norrington v. Wright, 115 U. S. 188 (6 Sup. Ct. 12: 29 L. Ed. 366). In other cases the term [278] “about” has been held as equivalent to the phrase “not to exceed.” Thus in People v. City of Riverside, 70 Cal. 461 (11 Pac. 759) where an act of the legislature declared that a city of the sixth class must be one containing “not exceeding” 3,000 inhabitants, and the notice of an election to decide on incorporation stated that the number of inhabitants therein was “about 3,000,” it was held that this was a sufficient notice to designate the city as one of the sixth class, since, if it contained “about 3,000” inhabitants, it could not exceed 3,000, prohibited by the statute. In Simpson v. N. Y., N. H. & H. R. R. Co., 16 Misc. Rep. 613 (38 N. Y. Supp. 341), the plaintiff in an action for damages for loss of goods alleged the value of the baggage lost to be “about” a certain sum, and it was held that the term used meant “nearly,” “approximately,” “almost,” and that his recovery must be limited to the sum named. In estimating timé it was held in The Alert (D. C.) 61 Fed. 504, that, where the charter of a steamer provided that the vessel should be delivered for the use of the charterer at a port in the West Indies “about” April 10th, the word “about” gave the owner only such additional time as might be made necessary by accidents of navigation arising on the voyage after a reasonable start, and such delay in starting as would prevent the ship from arriving at her destination before the 27th of April was a breach of the charter. In the case last cited the court lays stress upon the fact that the vessel was intended for the shipment of fruit, and that the season for such shipment was short and the cargo perishable, and therefore that time was of the essence of the contract. While the humble, but useful, potato, could hardly be classed as a fruit by even the most Hibernian of judges, yet we may go so far as to take notice that it is a vegetable, that like all things earthy, is subject to decay, and that so late in the year as the latter part of April it would not [279] be good business policy for a farmer to hold a large quantity on hand upon uncertainty as to when a car would be furnished to take them away. The phrase “about five weeks” was confessedly put into the contract not to limit the time within which plaintiff should furnish defendant a car, but to limit the time within which defendant should complete a delivery of the goods. He had a right to begin delivery at any time and to call for a car in which to place his produce. On the 28th of March he did call for a car, and plaintiff failed to furnish it. About the 15th of April he saw plaintiff’s agent and still received no car. We are of the opinion that, under the circumstances, he was not required to wait longer and allow his produce to deteriorate on his hands, as it naturally does and would have done at that season of the year. Plaintiff should have furnished him a car in such reasonable time that he could have completed his delivery approximately on April 24th. Had defendant waited until the 26th, when the car finally came, it is evident that under the conditions shown in plaintiff’s testimony the delivery could not have been completed until some time early-in May. The fact, if it is a fact, that the delay in furnishing a car was the fault of the railroad company, can make no difference so far as defendant’s liability is concerned. If, by the neglect of the railroad company to provide adequate equipment to carry on its business, the plaintiff has been prevented from carrying out its contract and has been damaged in consequence, its remedy is against the railroad company, and not against the defendant. The judgment of the circuit court is affirmed. Affirmed.