84 A. 47 | N.H. | 1912
When goods are sold on credit, no action can be maintained for the agreed price until the agreed term of credit has expired. Dodge v. Waterman,
The plaintiffs proved a shipment in September; and if the goods had complied with the order, it might not have been necessary for them to have proved an acceptance by the defendant to establish a delivery in accordance with the contract. Nichols v. Morse,
The plaintiffs claim that their letter of January 25, 1908, in which they acknowledge the error in the shirts to be due to the fault of their salesman and offer to correct the mistake and reship the goods to the defendant if returned to them for that purpose, the return of the goods, their alteration to conform to the contract, and reshipment, constituted in fact a waiver of the terms of the contract as to credit, or at least an agreement to pay upon reshipment without further delay, this transaction being more than seventy days after the original shipment. As the plaintiffs broke the contract by shipping goods which did not conform to the order, the defendant might then have rescinded the contract entirely. Walker v. Davis,
The trial court made no finding or ruling as to the defendant's legal right to rescind the contract at this time, or as to the fact of rescission, and no question with reference thereto is transferred. The sole ground upon which the verdict is found is that the suit is premature. Upon this point the plaintiffs claim that the defendant's refusal to accept the shirts was a breach of the contract which gave them a right of action at once. This may be so; but they have brought no action for such breach and made no such claim. They refused to receive the goods from the railroad and stand upon the position that title thereto has been vested in the defendant — that they are his goods. If the defendant under the circumstances was legally bound to accept the goods, this position is well taken, and the plaintiffs need not resort to an action against the defendant for not doing in fact what the law will compel him to do.
Assuming that the defendant's refusal to accept the goods was wrongful and a breach of the contract of sale, the plaintiffs could have elected to regard the sale at an end and have brought their action for the breach, or they could, as they have, insist upon the validity of the sale and require the defendant to conform to its terms; but they cannot do both. Electing to stand upon the contract, they must abide by its terms. The case is on all fours with Parker v. Mitchell,
The action for the price proceeds upon the ground that the title has passed, and the breach for which the plaintiff asks damage is the non-payment according to the contract. The refusal to accept goods ordered or purchased, when tendered under the contract, is also a breach of the contract, and for this breach there is a right of *453
action. Chit. Cont. (10th Am. ed.) 464. Generally, where one party to an executory contract prevents the performance by the other, or refuses further to be bound, the other may regard the contract as terminated and demand whatever damages he has sustained, without waiting for the time of performance to elapse (Lee v. Dow,
The case Inman Mfg. Co. v. Cereal Co.,
Exceptions overruled.
All concurred. *454