113 Wash. 177 | Wash. | 1920
On January 12,1918, appellant ordered, through a merchandise broker representing the respondent in Seattle, three hundred crates of Australian onions. The order reads: “Sold to J. B. Powles Co. How ship, Boat. When, March. 300 crts. Australian onions, $94 per ton. Cost, freight & insurance Frisco. Acceptance Australia.” It appears to
In due time the respondent had ready for shipment the full three hundred crates of onions as ordered, but was permitted to load on the ship but two hundred .and forty crates, the remainder of the space being taken at the last moment by the United States Government for the purpose of shipping wheat to the United States. The two hundred and forty crates so shipped were consigned to the shipper’s order, with directions to notify the buyer, and a draft with bill of lading attached was drawn on the buyer for the purchase price, with the privilege of inspection before payment. Appellant, the buyer, declined to receive the shipment or pay the draft. The goods were sold for its account, and this case was brought to recover the loss occasioned by the resale at a price less than that named in the order, plus the expenses of resale. The case was tried to the court without a jury, resulting in a judgment against appellant for the full amount claimed, from which it appeals.
A number of troublesome questions are here presented: (1) Do the words “acceptance Australia” mean that the order taken by the broker is subject to acceptance by his principal in Australia, or that the purchaser must accept the goods when delivered to the ship in the Australian port? No evidence was offered
(2) It is contended, and generally held, that the delivery of goods under an executory contract must be of the exact quantity ordered, otherwise the buyer may
“A delivery of a less number was not a compliance with this contract. So far as it affected the-contract relations of the parties, a failure in the matter of one bale was as much as a failure to deliver any greater number of bales. The complainants sue to recover for the breach of an entire contract, and in order to maintain their bill they must show a compliance or a willingness to comply with it as an entirety. Failing in this latter regard, they fail altogether. Tiedeman on Sales, § 101; Barker v. Reagan, 4 Heisk. 590. Their insistance that they were relieved from tendering 50 bales by reason of the repudiation of the contract by the defendant, under the facts found by the Court of Chancery Appeals, cannot avail them. If they had accepted the repudiation, or rather cancellation, of the contract contained in the telegram from the defendant, of July 7th, then this failure would not have affected, other matters out of the way, their right to recovery. This, however, they failed to do. They declined positively to accept the cancellation, and thus kept the contract alive between themselves and the defendant, and thus enabled the defendant, notwithstanding its attempted cancellation, to avail itself of*181 any previous or subsequent breach on the part of the complainant.”
See, also, Sun Publishing Co. v. Minnesota Type Foundry Co., 22 Ore. 49, 29 Pac. 6; Barton v. Kane, 17 Wis. 38, 84 Am. Dec. 728; Price v. Engelke, 68 N. J. 567, 53 Atl. 698; Newell v. New Holstein Canning Co., 119 Wis. 635, 97 N. W. 487.
(3) Since the seller did accept the order in Aus-. tralia and was bound to deliver the exact quantity ordered, may he be excused from making full delivery because our national government (rightfully as we must assume), as a war measure, commandeered the /Only available shipping space for its necessities? Much as the writer would like to so hold, the authorities lay down the contrary rule. Had respondent been sued for damages for failure to ship the full order, this act by the government might have afforded a defense, but having sued on the contract, it is essential to a recovery that a full performance be shown, and no excuse not provided for in the contract will justify a recovery where the performance is partial only, save only an act of the buyer rendering performance impossible or a waiver by it. Newell v. New Holstein Canning Co., supra; Remy v. Olds, 21 L. R. A. (Cal.) 645; The Harriman, 76 U. S. 161, 9 Wall. 161, and cases there cited.
We conclude that the judgment must be reversed with directions to dismiss the action. It is so ordered.
Mount, Mitchell, and Main, JJ., concur.