Kellogg v. Frohlich

Grant, J. {after stating the facts). 1. Plaintiffwas a manufacturer of oils of various- kinds or types. As it [616] was manufactured it was stored in large tanks, from which it was drawn to ship to plaintiff’s customers as orders were received or contracts made. Manifestly, the oil which was covered by this contract was not in existence at the time the contract was made. It was not, therefore, contemplated that the oil covered by the contract was a part of a distinct mass then in existence and stored in plaintiff’s tanks. The contract called for four different kinds, but not for a specific amount of each kind. The defendant could have ordered the whole 900 barrels of one kind, or of two or of all kinds. There was to be no delivery if delivery was prevented by fire or strikes. There was no identification, and no selection out of a common mass. The minds of the parties could only meet as to the identical goods to be furnished when the defendant, in compliance with his contract, had ordered the number of barrels of such oil as he wished shipped to him. Under these conditions, nothing short of language which can leave no doubt of the intention of the parties to pass title will justify the finding that the title had passed. 1 Mechem on Sales, §§ 695, 717; Lingham v. Eggleston, 27 Mich. 324; First Nat. Bank of Marquette v. Crowley, 24 Mich. 492; Hahn v. Fredericks, 30 Mich. 223. We find no such language in this contract. The expressions “have sold,” in the one part, and “have bought” in the other, are to be construed with reference to all the provisions of the contract and the surrounding circumstances. They are not of themselves conclusive of the intent. In this connection it is urged that the plaintiff’s declaration is framed upon the theory of a resale, “ and that- said resale cannot be without notice of an intention to resell; and, no such notice having been given, the plaintiff cannot recover.” As already stated, title had not passed; there was no oil identified and set apart as the defendant’s; there was no identical oil to put up for sale. The oil specified in the contract had a market value, and, presumably, the. price at which it would sell would not be above that value. It is probable that the oil which would have been [617] furnished to the defendant, had he complied with his contract, had been sold, as the tanks were constantly being emptied and filled. Counsel cite no authorities that notice of a sale was necessary. Evidently the notice would have been an idle ceremony, as the real damage sustained would be the difference between the contract and the market or selling price at the time of the breach. We think notice of an intention to sell was unnecessary. The request, therefore, was properly refused. %. Plaintiff was under no obligation to deliver the goods except as instructed by the defendant. The delivery was to be of one to three car loads each month, of such kinds as defendant should direct plaintiff to deliver, within 10 days of the dates specified. Defendant could not wait until after the expiration of the time and then order a delivery of the whole amount. After repeatedly urging the defendant to comply with his contract in giving orders for shipment, the plaintiff, on February 14th, wrote to him for shipping instructions, and in the letter said: “I should much prefer having your shipping instructions for the oil than to ship it out without notice, which it will be absolutely necessary to do unless I hear from you with shipping orders.” It is urged that the plaintiff by this letter assumed the delivery, and, by shipping one car load thereafter, assumed the burden of delivering all the oil at Detroit. To this letter defendant made no reply. It was not a waiver of the obligation on the part of the defendant to comply with the contract. It varied the terms of the contract, and the defendant is not in position to assert such change, unless he acquiesced in it. 3. Plaintiff was under no obligation to accept defendant’s offer contained in his letter of July 10th. Defendant had violated his contract. He had not ordered the goods as required. His offer was to “take the oil you claim due me under the contract.” The times of delivery had expired. It was, of course, the duty of the plaintiff to make all reasonable effort to reduce the damages. The [618] contract was at an end, and he was under no obligation to sell upon credit. The contract provided for payment 30 days from date of the invoice, or less 1 per cent, if paid within 10 days from such date. Defendant’s offer in the letter was not to pay cash, but to take the goods upon the credit provided in the contract. If defendant had offered to take the goods, and tendered in cash the price fixed by the contract, undoubtedly the plaintiff would have been required to accept it, or, failing to accept it, would have been held to waive any claim for damages. But defendant was seeking to revive a dead and broken contract. Judgment affirmed. Carpenter, McAlvay, Montgomery, and Hooker, JJ., concurred.