J. L. Price Brokerage Co. v. Baker Grocery Co.

| Or. | Dec 30, 1919

BENNETT, J.

The correspondence above was the only evidence offered on behalf of plaintiff, except some evidence in relation to the market value of the potatoes at the time of delivery, and some evidence as to the readiness and willingness of the plaintiff to take and pay for the potatoes. There was no evidence that the plaintiff had any representative at the place of delivery, to accept or pay for the same, or that it ever had any money in any bank in Baker, Oregon, or in Baker, Oregon, at all, to pay for the three carloads of potatoes.

Plaintiff claims that the defendant, after loading the potatoes, should have telegraphed it the weight of the carloads, and the amount of money necessary to make the payment, and that it was in default in its delivery, because it did not do so. The defendant, on the other hand, claims that the plaintiff should have had the money actually at the bank at Baker, Oregon, to take up the bill of lading, and that it did not do so; and that after defendant had waited as long as it could, under the railroad regulations, it was compelled to sell the potatoes to another customer at a loss.

It seems to have been the opinion of the court below that the minds of the parties never met as to where and how the payment for the potatoes was to be made, and that, therefore, there was no consummation of the contract. When the plaintiff was arranging for the shipment of the first car (which is not in controversy here) it had telegraphed:

“Ship us one car. Draft bill of lading to Bank of Buchanan County here.”

In response to this telegram the defendant wrote a letter containing the following paragraph:

“I notice that you request that we make draft through the Bank of Buchanan County. We would much prefer that you would have your bank wire the First National Bank of Baker, Oregon, to pay draft when presented. * * I had a little experience about ten years ago in shipping potatoes East. While these were shipped' bill of lading attached we never received a cent on them, which makes us rather uneasy in regard to shipping to a firm that we never heard of before this time.”

In answer to this the plaintiff, on the 14th, telegraphed :

“Will have the bank there pay you for each ear as ¡loaded. ’ ’

After some telegrams of negotiation back and forth, the defendant finally on the 17th, telegraphed:

“Will load three cars at one twenty-five per hundred. ’ ’

To this the plaintiff answered on the/same day:

“We accept three cars dollar quarter. Route U. P. care St. Joseph Grand Island. Send draft bill of lading to Bank of Buchanan County here.”

Defendant did not answer this telegram by wire, and never acceded to the latter clause of the same, but on the contrary, on the same day, wrote the plaintiff at length, saying:

“We also had your wire a few days ago stating you would place funds in the bank here to pay for three cars. We have not yet heard from you in this respect. If you have not already done so, please wire the First National Bank, Baker, Oregon, to pay our draft when presented. We would like to have you give this immediate attention for if we take these potatoes into the basement it would cost considerable to take them out again.”

Up to this time it is clear the minds of the parties had not met as to whore payment was to be made or how. The defendant had never accepted the condition attached to plaintiff’s telegram of October 17th, asking that the draft accompany the bill of lading. On the contrary, the defendant was evidently depending upon the assurance of plaintiff’s telegram of the 14th:

“Will have the bank there pay you for each car as loaded. ’ ’

The plaintiff in due course of business must have received the letter of the defendant demanding that the money be placed in the bank to pay for the cars as soon as loaded, on the 20th or 21st of October. It paid no attention to the letter, and did not answer it in any way, and up to the 24th of October it had made no arrangement with the Baker Bank whatever, for payment. After some intervening telegrams in relation to the providing of cars, the defendant finally, on October 24th, telegraphed the plaintiff:

“Unless money placed in First National Bank, Baker, to pay for potatoes contract is broken. Loaded car today and no money here to pay for it. Answer by wire.

“Baker, Grocery Co.”

To this the plaintiff answered.

“Wire quick number pounds potatoes in car amount money. Will wire cash tomorrow. Answer quick. We have three more cars coming.”

On the next day defendant answered:

“Wire received. Railroad company positively refuses to hold car.”

There was no evidence whatever that plaintiff ever did send the money to Baker City, or arrange with the Baker City bank to make payment. Apparently they accepted defendant’s last telegram as a refusal to fulfill the contract, and they never have offered or tendered any money to pay for the potatoes, nor have they ever had the money at Baker ready to pay for them.

1. Of course the burden was upon the plaintiff to show, not only that it had complied with the conditions of the contract upon its part or that it was ready to comply, at the time and place fixed by the contract; but also that the defendant failed to deliver or to have the potatoes ready for delivery upon payment by plaintiff. Yet there was no evidence offered that the defendant had failed or refused to perform, or that it did not have the potatoes ready for delivery, in accordance with its contract.

For aught that appears in the evidence, all of the potatoes may have been at the cars ready for loading, or they may have been actually loaded in the cars. If it were not for the allegation in defendant’s answer that they had at some time later been compelled to sell the potatoes to other parties, there' would be nothing in the case to show that the potatoes were not yet upon the railroad tracks at Baker, awaiting acceptance by the plaintiff. The loading and delivery of the cars and the payment by the plaintiff were concurrent conditions. Each had to be ready and willing at the place where the delivery was to be made to perform the conditions of the contract upon its own part, before it could hold the other party for default. It would be no compliance with the contract upon the part of the defendant, if it had kept the potatoes on the farm where they were raised, perhaps 10 or 15 miles from Baker, however willing and ready it might be to deliver. Neither was it a compliance with its part of the contract, on the part of the plaintiff, to have the money ready at some point back in Missouri to pay for the purchase.

2. It was the duty of the plaintiff to be on hand, at the point designated for delivery, either in person or by some authorized representative, to accept the potatoes and pay the price. It may be a question as to whether the plaintiff could insist upon the loading of the potatoes in cars, until it was there by a representative ready to pay the money, but certainly it could not insist that the potatoes be turned over to it, or billed or shipped to it, until the money was paid. It seems to be the contention of the plaintiff that the defendant was bound to wire to it the weight of the potatoes and the amount of money necessary, and then give it time, after the potatoes were loaded, to make arrangements with the bank at Baker to pay for the same. >

That might have been a gentlemanly and courteous thing for the defendant to do, but we cannot see that it was under any such legal obligation. If the plaintiff had arranged for some representative to be present and to accept the potatoes and make payment for the same, there evidently would have been no trouble. It would not have been necessary for the plaintiff to send three times the money, or any sum of money, to the bank at Baker, as suggested by it. If it was a reputable concern, it would have been very easy for it to arrange, through its bank at home with the bank at Baker, to páy whatever sum should appear to be due upon presentation of the bill of lading. This was what the defendant asked plaintiff to do, but it seems to have gotten stubborn, and insisted upon financing the arrangement at long distance in its own way. In doing this, it got itself in a position where it was unable to make a strict and literal performance of the conditions of the contract npon its own part.

It is donbtfnl whether the minds of the parties ever met as to the place and manner of payment, in snch a way as to make a consummated contract; bnt assuming that they did, we think the plaintiff has not shown a sufficient performance of the contract npon its part or a breach of the contract upon the part of the defendant. In reaching this conclusion we do not find it necessary to pass npon the question as to whose duty it was to furnish the cars upon which the potatoes were to he loaded.

The judgment of the court below is affirmed.

Affirmed.