— This is а suit for the purchase price of certain metallic pipe sold by plaintiff to defendant. The finding and judgment were for plaintiff and defendant prosecutes the appeal. A jury was waived and a trial had before the court.
It appears plaintiff is engaged in the railway supply business in the city of St. Louis, and the metal pipe involved here was furnished on his accоunt by the American Spiral Pipe Works of Chicago, Illinois. Defendant desired the pipe to be used at Glynn, Louisiana, and interviewed plaintiff thereabout on December 26. The evidence tends to prove that plaintiff sold defendant the 500 feet of eighteen-inch metal pipe in thirty-foot lengths on terms of immediate delivery f. o. b. Chicago, to be shipped to Glynn, Louisiana, fоr the price of $750. The pipe was not promptly shipped, and defendant kept after plaintiff thereabout, while plaintiff urged the American Spiral Pipe Works of Chicago by telegram and telephone, until it was -finally loaded on cars on the Chicago Belt Eailwav on January 5. However, this is conceded not to have been a delivery to defendant, for it seеms the agreement contemplated the Illinois Central Eailroacl Company as the initial carrier, and the pipe was not delivered to that company until January 7.
On the morning of Jаnuary 7, plaintiff delivered a bill of lading for the pipe to defendant, duly signed by the agent of the Illinois Central Eailroad Company. This bill of lading was dated Chicago, January 5, and stamped in red ink on its face was the following: “It is expressly understood and agreed that this bill of
By a stipulation in the record it is agreed that the pipe was actually delivered on the car of the Illinois Central Railroad Company at Chicago on January 7, though the bill of lading was dated two days before, while it was in the custody of the Chicago Belt Railway Company. It appears that considerable delay in the shipment occurred after delivery of the pipe to the Illinois Central Railroad Company, for it did not pass through East St. Louis en route to Louisiana until January 16. On January 16 defendant learned that the pipe had passed through East St. Louis on that day and thereupon notified plaintiff
In his answer, defendant pleads a rescission of the sale and rejection of the goods because of plaintiff’s failure to deliver, the pipe on the cars of the Illinois Central Railroad Company at Chicago immediately as it agreed, and for a further defense interposed a cross-bill or counterclаim for damages, but it seems the cross-bill' was wholly abandoned at the trial, for no' evidence whatever .was introduced tending to prove the amount of damages, if any, defendant suffered.
On scrutinizing the record, it appears the court found the issue for plaintiff on the theory that, though plaintiff had breached its contract for immediate delivery, defendant had nevertheless waived the breach and its right of rescission on that ground through accepting and retaining the goods and the bill of lading therefor without objection, and rejected the counterclaim for dаmages because no proof whatever was made with respect thereto.
On the facts in the record the judgment appears to be a proper one, for no one can doubt delivery of the pipe to the Illinois Central Railroad Company at Chicago on January 7 was a delivery to defendant, if accepted by him. The contract of purchase called for a delivery f. o. b. Chicago and the Illinois Central
Without objection whatever, defendant accepted the bill of lading on January 11 with full knowledge of the delay then accrued. Obviously such is to be regarded as an acceptance of the goods then in possession of its agent.. Having thus accepted the goods and retained the indicia of title — that is, the bill of lading — throughout, it was certainly competent for the court to find, as it did, that defendant elected to waive his right to rescind and affirmed the sale. [See Kessler v. Perrong, 22 Pa. Sup. Ct. 578.] The rule is, that when time of performance is made an essential element of the contract of sale, such stipulation is regarded аs being in the nature of a warranty that the goods- will be delivered in the time agreed, and in case of failure of the vendor to so deliver, the vendee has the option either to rescind the contract and to refuse to accept the goods or to receive them and recover from the vendor his damages. [See Wall v. Ice & Coal Co.,
What has been said sufficiently disposes of all of the questions raised in the case and it is unnecessary to take up the instructions and discuss them separately. The judgment should be affirmed. It is so ordered