Washburn-Crosby Co. v. Kubiak

Eschweiler, J. Assuming, but only for the purpose of the present disposition of this case, that the letter of December 4th quoted above indicated such a refusal by defendant to carry out the contract that it might be treated by the plajntiff as an anticipatory breach thereof, yet there is nevertheless' lacking an essential element which must exist before plaintiff could be entitled to recover damages upon such theory, it being the one upon which judgment was rendered in the court below. The fact alone that one party to such a .contract indicates his intention of not carrying out his part thereof prior to the time of performance is not suf [295] ficient to destroy the contract relationship theretofore existing. The effect of such renunciation by the one is to give the other party an opportunity to then treat it as thereby canceled or nevertheless elect to hold and consider the contract still in force and insist upon performance by the one so renouncing, or tender performance on his own part and thereafter seek the appropriate remedy for either. But there must be an election in some manner of one or the other alternative. Where, as in this case, the plaintiff as seller gives no recognition on his own part of the renunciation to the buyer by responding in any way thereto and proceeds, in spite of such repudiation, to ship the goods in .alleged compliance with the contract, he must necessarily be held to have thereby waived his right to treat such action by the buyer as an anticipatory breach. Woodman v. Blue Grass L. Co. 125 Wis. 489, 495, 103 N. W. 236, 104 N. W. 920; Kamps & Sacksteder D. Co. v. United D. Co. 164 Wis. 412, 414, 160 N. W. 271; Ambler v. Sinaiko, 168 Wis. 286, 294, 170 N. W. 270; Rauer’s L. & C. Co. v. Harrell Co. 32 Cal. App. 45, 162 Pac. 125, 133; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780; Central T. Co. v. Chicago A. Asso. 240 U. S. 581, 589, 36 Sup. Ct. 412; 5 Page, Contracts (2d ed.) § 2893; Benjamin, Sales (7th ed.) § 568. The two courses thus open to his option are necessarily so inconsistent that he cannot have both, and having deliberately chosen the one he has lost the other. Haueter v. Marty, 156 Wis. 208, 211, 145 N. W. 775; Indiana L. E. Co. v, Carnithan, 62 Ind. App. 567, 109 N. E. 851, 855; Leonard v. Kendall (Tex.) 190 S. W. 786, 789; 5 Page, Contracts (2d ed.) § 2896; 6 Ruling Case Law, p. 1025. The effect of the shipment of the carload of flour and feed on December. 11th by plaintiff in alleged compliance with the contract of December 1st and its bringing this action to recover for failure by defendant to pay for such shipment cannot, by such a mere change of pleadings as was permitted in the court below, reinstate the rights, if any such plaintiff had, [296] upon any anticipatory breach by defendant prior to the time of such shipment. Such change as was so permitted by the trial court is not a mere permissible change of' pleadings but amounted to a reinstatement of a.cause of action heretofore lost. By the unexplained omission of the 200 bushels of corn in the carload shipment of December 11th the plaintiff came within the provisions of sec. 1684i — 44, Stats., providing that, where the seller delivers to a buyer a quantity of goods less than those contracted to be sold, the buyer, may reject the entire shipment as a noncompliance with the contract. Therefore, upon receiving the invoice showing that the shipment did not contain the corn, and such being the fact, the defendant was justified in rejecting the entire shipment. The rule would be the same independent of such statute. Newell v. New Holstein C. Co. 119 Wis. 635, 641, 97 N. W. 487. The defendant therefore incurred no liability to plaintiff by his refusal to accept and pay for the goods so attempted to be tendered by plaintiff, for. this reason rendering it unnecessary to determine whether or not he was also justified in refusing to accept the attempted delivery because shipped prior to the time fixed by the contract and without the defendant having requested such shipment or having had any opportunity to select, under the options given him, as to the sizes of the packages of flour. It follows from what has been said that the plaintiff has no cause of action whatsoever against the defendant, and judgment should now be rendered in his favor. By the Court.. — Judgment reversed, and the cause remanded with directions to dismiss the complaint.