Powers v. Dodgson

Ostrander, J. (after stating the facts). Both parties testify to a present sale of wool, the precise quantity unknown. The jury has found that the quality was agreed upon, the whole to contain not more than 300 pounds of fine wool. Defendant tendered much more than 300 pounds of fine wool. The plaintiff refused to accept such a delivery, and offered to take the wool with 300 pounds of fine wool and pay for it. Defendant refused all offers made, insisting upon the agreed price for all of the wool and refusing to deliver less than all of the wool. Under the provisions of the uniform sales act (3 Comp. Laws 1915, § 11832 et seq.), title to the wool passed to plaintiff November 28, 1914. It was the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract, delivery of the goods and payment of the price being concurrent conditions; the seller being ready and willing to give possession and the buyer ready and willing to pay the price in exchange for possession. But when the seller delivers to the buyer goods he contracted to. sell, mixed with goods of different description, not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest, or may reject the whole. There is a further provision of the act to the effect that where goods have been delivered to the buyer (though under a warranty), he cannot rescind the sale if he knew of the breach, of warranty when he accepted the goods. [139] I think it plain that plaintiff did all that he could do to perform his contract; that title to the goods bought passed to him; that delivery did not conform to the contract; that he offered to reject goods not bought and pay for the remainder; that defendant disputed the terms of the contract he had made and refused to make delivery in accordance therewith. Defendant cannot stand in this court upon any right to retain the goods until payment had been made in accordance with the contract. He refused to deliver; was not ready and willing to deliver what he had sold. He converted what he had sold by a sale to another. The issue of fact was properly given to the jury and, under the circumstances, the measure of damages recoverable was correctly stated. Negotiations by which plaintiff sought to receive what he had bought continued almost to the date when defendant disposed of the property. The measure of damages given by the trial court was the difference between 25y% cents and what the wool was worth when defendant sold it to others. The judgment is affirmed. Stone, C. J., and Kuhn, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.