McMillan v. Fox

Winslow, J. The contract in question was an executory contract of sale of certain specific piles of lumber. It contemplated a delivery from time to time, as ordered by the defendants, of car-load lots, to be paid for within a certain time after delivery, and so was manifestly severable. As each car-load lot was delivered the contract became, so far as plaintiffs were concerned, an executed contract of sale of the lot so delivered. Gill v. Benjamin, 64 Wis. 362. These principles cannot be doubted. The contract was for the sale of specific property, and hence must have contemplated the continued existence of that property as an implied condition of its performance. In such case the parties are excused from carrying out the contract in case, before breach, performance becomes impossible from the destruction of the thing without fault of [177] the contractor. Taylor v. Caldwell, 113 Eng. C. L. 826; Dexter v. Norton, 47 N. Y. 62. By the accidental fire, without fault of the plaintiffs, they were therefore excused from delivering the lumber that was burned. The situation at that time was this: As to the lumber already delivered the contract had been severed and pro tcmto executed; as to the lumber burned it had been terminated and both parties excused from performance. The only question left was as to the lumber which had 'not been burned and was yet undelivered. The most that can be claimed for the defendants is that, by reason of the fire having destroyed an important portion of the property, they were entitled to rescind the contract so far as- it related to the lumber not yet delivered. Conceding that they had this right (which we do not decide), it appears by their own testimony that they did not exercise it. Knowing the facts, they voluntarily went on, ordered and received all the remaining lumber at the contract price, and necessarily by each such order and receipt executed so much of the contract. By these acts they undoubtedly waived any right which they might have had either to insist on full performance or to claim damages for the nondelivery of the part which was burned. The plaintiffs should have had judgment for the amount unpaid for lumber delivered at the contract price of $11 per thousand feet. The facts-have all been determined without error, and no new trial is necessary. By the Court.— Judgment reversed, and action remanded with directions to render judgment for the plaintiffs in accordance with this opinion.