51 Wash. 312 | Wash. | 1909
— This is an action to recover damages for an alleged breach of contract to deliver a quantity of railroad ties. The terms of the contract are set forth in the following copy of a part of the correspondence between the parties:
*313 “Portland, Oregon, January 23, 1906.
“Vancouver Lumber Company, Vancouver, Wash.
“Gentlemen: We hereby confirm our order for 50,000 pieces of 7x8-8' merchantable Oregon pine ties. These ties not to run over 20 per cent No. 2 merchantable. Any excess No. 2 to be $2.00 per thousand feet less. Inspection and tally at loading point by inspector from Pacific Lumber Manufacturers’ Association, or an inspector to be mutually agreed upon.
“Price $9.00 per thousand feet, less 2 per cent. Delivered to ship’s tackle along the Columbia River where vessels drawing 20 feet can safely lie afloat. Terms cash on presentation of bill of lading, inspection certificate and invoice at the Bank of California, Portland. Delivery of the entire lot to be not later than June 1, 1906. You agree to notify us thirty days before wanting vessel, Vessel to receive the ties not less than 60,000 feet per day. Yours truly,
“Charles R. McCormick & Co.
“Accepted: Vancouver Lumber Co., by W. Tenney, Manager.”
The complaint alleged that the defendants refused to deliver the ties, and recovery for resulting damages was demanded. The defendants answered that they were prepared to carry out their contract, and for that purpose had the ties sawed and delivered at the Columbia river; that they were ready and willing to deliver the ties according to the contract, but the plaintiffs refused to pay for the same or to make provision for payment as provided by the contract. The cause came on for trial before a jury, and resulted in a verdict for the plaintiffs in the sum of $2,325.83. Judgment for that sum was entered against the defendants, and they have appealed.
The court in its instructions did not submit to the jury any questions of fact except the amount of damages to be recovered. The appellants excepted to the action of the court in taking from the jury all questions relative to the contract and the breach thereof. It is contended that failure on the respondents’ part to make preparations to pay cash
“One of two parties should not be required to tender performance when the other has, by act or word, indicated that he will not, or cannot, accept it, or will not, or cannot, do that in return for which the performance was promised. Nor will the courts hold him any longer bound.” 9 Cyc. 641.
There was evidence to the effect that, after a vessel was ready to take the ties in the Columbia river, the appellants ordered a tug to tow the ties out to the ship, and then telegraphed the specified bank in Portland to know if arrangements for payment for the ties had been made, and received
It is further assigned that the court erred in permitting respondents to testify concerning the expense of a trip from San Francisco to Portland for the purpose of trying to effect a delivery of the ties. This expense is claimed by respondents as an element of damages to be recovered in this action. In submitting the cause to the jury, however, the court did not submit the above question, but restricted the damages to the difference between the market price of the ties on the 1st of June, 1906, and the contract price, and also to money expended by respondents in the towage of vessels which were to receive the ties. It follows that, under no view of the criticized testimony, did prejudicial error accrue therefrom to appellants. For reasons heretofore stated, however, other questions should have been submitted to the jury, and the
Fullerton, Crow, and Dunbar, JJ., concur.
Mount, J., dissents.