Greer v. Oelhafen

ViNjE, C. J. The appeal presents but two questions for solution: (a) Did the trial court err in finding “that shipment of said lumber to the plaintiff with draft attached to bill of lading merely required that plaintiff should make payment of the draft so as to secure bill of lading by the time that delivery of the car was tendered him at Evansville, Indiana?” and (b) Was plaintiff’s refusal to pay the balance of $239.25 due on the third car till he could get an assurance from defendants that they would ship him more lumber such a substantial breach of the contract as to bar recovery ? The contract was for the sale of lumber f. o. b. cars at Evansville, Indiana, and the seller was to pay the freight. Title, therefore, remained in the seller till the lumber was delivered at Evansville. Sub. 5, sec. 1684i — 19, Stats. A cash payment for the purchase of personal property is payment upon delivery. _ Such payment was made for the first two cars and it satisfied the calls of the contract, as the trial court found. No draft was attached to the bill of lading of the third car, and while plaintiff did not send his check for $850 as agreed upon, because of the inferior lumber the car contained, he did send his check for $600 and he paid $145.05 freight, in all $745.05, almost within $100 of what was agreed to upon the assumption that the lumber was up to grade. It was not up to grade and that was defendants’ fault. The negotiations followed by letters for about a month. Plaintiff constantly urged defendants to ship and [134] said he would send balance if they would promise him more lumber. This they refused or neglected to do. At this time he had sustained damages in a far greater sum than he withheld, and we think the trial court was justified in holding that plaintiff’s breach, if any, was not so material as to entitle defendants to breach the contract. Sub. 2, sec. 1684i- — 45, Stats., provides: “Where there is a contract to sell goods to be delivered by stated instalments, which are to^ be separately paid for, and the seller makes defective deliveries in respect of one or more instalments, or the buyer neglects or refuses to take delivery of or pay for one or more instalments, it depends in each case on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken.” The facts in this case bring it well within the statute calling for a severable breach. See, also, Wilbur v. Means, 171 Wis. 401, 406, 177 N. W. 575; Helgar Corp. v. Warner’s Features, 222 N. Y. 449, 119 N. E. 113. The breach.of plaintiff was quite justifiable and trivial 'compared with defendants’ breach in refusing to ship promptly as they had agreed to do. Plaintiff sustained damages in excess of $3,000 hy their failure to live up to the terms of their contract, and they cannot justly complain of plaintiff withholding a couple of hundred dollars till he found out what they were going to do. By the Court. — Judgment affirmed.