- 55,00 kr
CHOICE OF REMEDIES WHEN LUMBER IS REFUSED ON ARRIVAL.
Recently a member took an order from a dealer in Pennsylvania for a car of lumber, and after order had been forwarded to the mill, the buyer requested that a change be made in a certain size included in the order, which our member advised would be made if shipment had not already gone forward from the mill. It developed, however, that shipment had been made and that it was too late to alter any part of the original order. Upon arrival the buyer refused to accept the lumber on the ground that it was not as ordered.
In connection with this case we have the following opinion from an experienced attorney:
Seller has the choice of one of three things, viz.: First, he may store or retain the property for the vendee and sue him for the entire price. Second, he may sell the property, acting as the agent for this purpose of the vendee, and recover the difference between the contract price and the price of resale. Third, he may keep the property as his own and recover the difference between the market price at the time and place of delivery and the contract price. Usually, the best course to pursue would be to elect the second remedy, to wit: that of acting as agent for buyer and dispose of the carload of lumber and recover the difference between the contract price and the price of resale. By proceeding in this manner, they may have the use of the price realized from the sale, and they have done all that good faith required to the end that any loss sustained be reduced to a minimum. Of course, the seller on the resale must dispose of the goods in good faith and the best mode calculated to produce their value, whether it be public auction or by broker, or any other mode that can or could be easily adopted.
Opinion No. 1.
A metropolitan dealer writes:
We took an order in writing from a party for 25,000 feet of lumber, 5,000 feet to be delivered the latter part of May, June,
July, August, and until all should be taken. Buyer accepted the delivery of the shipments until June, when he refused the shipment, writing us a letter, as trade was dull, to please not ship any more goods on account of order until he notified us. We immediately wrote him that we should insist on his living up to the terms of the contract. We had our truckman make note of the fact that he tendered the goods at their factory and that they refused to receive them. Now, can we sue and collect for these goods, and in the future if they refuse to receive them after tendering them can we sue? If we should instruct our truckman to leave these goods on the sidewalk in front of their place of business, could we sue, claiming this was a proper delivery and collect for same?
Reply: When goods are to be delivered in a number of instalments, as in this case, the buyer’s refusal to accept delivery of any one instalment is a breach of the whole contract; the seller may declare the contract at an end, from that moment, and may sue and recover any damage that the breach of contract may have caused him. The seller has the choice of three remedies. He may keep the goods as his own and sue for the damages; he may hold the goods as agent of the buyer, informing the buyer that they will be delivered to him upon his demand, and sue for the contract price of the goods; or he may sell the goods, for account of the buyer, giving the latter prior notice of the time and place of sale and then hold the buyer for any deficiency. A delivery of the goods upon the sidewalk in front of the buyer’s place of business would be of no advantage to the seller and it might make him liable for that part of the goods if the buyer neglected to take charge of them. The seller cannot sue for the price of each instalment, when it has been tendered and refused. This would be to put the buyer to the expense of defending a number of suits, all arising out of one contract, and this the law does not sanction. Though it calls for delivery at different times, the contract is one and not several, and it may be made the basis of only one action. Suit may be brought as soon as there is a breach of it, it is true, but that suit must be for all the loss arising by reason of the buyer’s unjustifiable act, not simply for the value of the single instalment tendered and refused. When any suit is brought the court will assume that it is for all the loss arising out of the contract and further suits upon the same cause of action will be barred.