192 P. 400 | Or. | 1920
It must be remembered that no order was accepted by the plaintiff after September 26th, and that all the orders involved in this controversy, except one, were given to and accepted by the plaintiff prior to September 26th. It must be remembered, too, that all the orders which had been filled had been paid for, except the orders filled on and between October 21st and October 30th, aggregating, with the prepaid freight charges, $1,168.42. It must also be remembered that on November 18th more than fifteen days had elapsed since October 30th, the date of the last invoice. It must likewise be remembered that on November 18th thirty days had not yet elapsed since October 21st, the date of the first invoice. The parties are agreed that the prices fixed for the invoices dated on and between October 21st and October 30th are correct, and that they have not been paid. The controversy centers around the counterclaim. The plaintiff alleges in its complaint that it accepted and filled the orders on the “distinct understanding” that Vinton would pay the amount of
The evidence given in behalf of the plaintiff and the instructions of the court introduced into the case an additional element, not pleaded by the plaintiff. There was testimony to the effect that Vinton’s credit was limited to $1,000, and that Vinton agreed to honor a draft whenever the unpaid invoices amounted to $1,000. Vinton denied that there was at any time an agreement limiting his credit to $1,000, or obligating him to honor a draft whenever the unpaid invoices aggregated $1,000, and he claimed that at all times the agreed terms were “1%, 15 days, 30 days net,” and that, for the reason that on November 18th thirty days had not yet elapsed since the date of any unpaid invoice, he was not in default, and that, therefore, the contract was breached by the plaintiff and not by Vinton.
Since the rights and obligations of the parties are necessarily governed by the terms of the contract or contracts under which the orders were to be' filled, it became important at the trial to ascertain those terms. The contention of the plaintiff as to the terms of the contract presents itself in two phases. On the one hand, the plaintiff says that from the beginning it was understood that each invoice should be paid within fifteen days from its date; and, on the other hand, the plaintiff says that, even though it be assumed that the terms were originally “1%, 15 days, 30 days net,” as claimed by the defendant, nevertheless, those terms were modified on September
“For your information might state that it is our intention to discount your bills”;
and the letter of August 31st, in which Vinton declares :
“As stated to you when we first began sending you orders, we fully expect to discount all of our bills with you.”
The American authorities are in irreconcilable conflict upon the question as to whether or not the seller may terminate the contract on account of a default in the payment of an installment, when the contract provides for the sale and delivery of a given commodity in stated installments which are to be separately paid for.* In this country it is probably accurate to say that the weight of judicial opinion is now to the effect that, if the buyer defaults in the payment of a given installment, the seller may treat the default as a breach and terminate the contract, without incurring any liability for damages for the failure to make delivery of subsequent installments Ross-Meehan Foundry Co. v. Royer Wheel Co., 113 Tenn. 370 (83 S. W. 167, 3 Ann. Cas. 898; 68 L. R. A. 829); Ohio Valley Buggy Co. v. Anderson Forging Co., 168 Ind. 593 (81 N. E. 574, 11 Ann. Cas. 1045); Alpha Portland Cement Co. v. Oliver, 125 Tenn. 135 (140 S. W. 595, Ann. Cas. 1913C, 120, 38 L. R. A. (N. S.) 416); 24 R. C. L. 280.
According to what is probably the minority view, the failure of the buyer to pay an installment does not give the seller an absolute right to terminate the
If from the beginning the payment of each invoice was made a condition precedent as to subsequent orders, then there was no modification of the contract on September 26th, unless it can be said that the parties agreed to limit the defendant’s credit to $1,000, with the right on the part of the plaintiff to draw on the defendant whenever the unpaid invoices aggregated $1,000, regardless of whether or not fifteen days had elapsed since the dates of the invoices. If in the beginning the contract allowed Vinton a discount of 1 per cent if he chose to pay within fifteen days, and also allowed him the privilege of taking thirty days without a discount, then, if there was a modification on September 26th, the change included either one or two particulars. If there was only one change, it may have related to the limitation of fifteen days claimed to have been fixed for the payment of each invoice, or it may have related to the limitation of $1,000 said to have been placed upon Vinton’s credit.