Robson v. Bohn
27 Minn. 333
Minn.
1880
Check Treatment
Gilfillan, C. J.

Action to recover the .value of lumber delivered to defendant." On May 19, 1873, the parties entered into a written contract, by which plaintiff agreed to sell and deliver to defendant 425,000 feet of lumber of various descriptions, as set forth in a schedule attached to the contract; certain of the lumber to be stacked bjr plaintiff on land of defendant in .Winona, the remainder to be delivered free on *344board ears at Winona; all to be delivered by September 1, 1873; the delivering to commence at once, and continue,, at the rate of not less than 20,000 feet per week, till the whole was delivered, and all to be good, sound, merchantable lumber, of as good quality as is usually sold in the city of Winona. The defendant agreed to deliver to plaintiff, on the execution of the agreement, his note for $3,000, payable July 10,1873, and the further sum of $2,000 August 1, 1873; and on the full delivery of the lumber, to pay therefor at the rate of $15.50 per thousand feet, less the said $5,000.

One question made in the case is, was plaintiff’s covenant to deliver lumber after August 1st dependent upon defendant’s covenant to make the payment of $2,000 on that day, so that if defendant, the plaintiff not being in default, refused to make that payment, the plaintiff could refuse to deliver any more lumber, and, if defendant’s refusal were persisted in, treat the contract as abandoned? Although the contract does not in terms express that any one of the covenants shall be dependent on another, there can hardly be a question that they were intended to be so in the order in which they are to be performed. That is, that plaintiff’s obligation to deliver any lumber at all depended on defendant performing his covenant to deliver the note for $3,000 ; defendant’s covenant to pay $2,000 August 1st, on plaintiff’s performance up to that time of his covenant to deliver at the rate of 20,000 feet per week; plaintiff’s obligation to continue delivering after that time, upon the payment of the $2,000; and defendant’s obligation to make the final payment, upon plaintiff’s complete performance of the contract on his part. It cannot reasonably be supposed that the parties intended that either party should be bound to perform on his part, though the other should refuse to do what he was required to do. No one could doubt that, in a contract for the sale of property, in which the time for paying the consideration is a date prior to that for the transfer of the property, the payment ol the consideration is intended to be a condition precedent to *345the obligation to transfer. This does not differ materially from such a case.

On or before August 1st, plaintiff delivered only 196,000 feet of lumber, of qualities such as-the contract called for; some thousands of feet less than the written contract required to be delivered on or before that day. To excuse this noncompliance with the contract on his part, plaintiff showed that, on the 22d of May, defendant requested him not to .ship (that is, deliver on the ears) any more lumber until further notified by defendant, and that, pursuant to that request, he suspended delivery of lumber until June 7th, when he resumed delivery. From that time he continued to deliver •at the rate of more than 20,090 feet per week. Plaintiff claims, and the court below decided, that this request relieved plaintiff from the obligation to deliver lumber during the time the request was in .force, while defendant claims that that ■obligation continued, and plaintiff ought to have fulfilled it by delivering during that time, on defendant’s land in Winona, 20,000 feet per week of the lumber to be there delivered. The court below was correct in deciding that the defendant’s request, while in force, justified plaintiff in suspending delivery of lumber. Had the contract required the ■delivery, during that time, of any of the lumber which was to be delivered on defendant’s land, the request to suspend .shipping the other lumber would not have affected that .requirement of the contract. But the contract did not so require. Plaintiff was, under its terms, at liberty to make up the 20,000 feet per week with the lumber to be delivered ■on the cars. He was under no obligation to deliver during that time any of the other lumber. The request could not have been intended nor understood by the parties to create ;sueh an obligation.

The excuse made by defendant at the time for not paying the $2,000 was not that plaintiff had failed to deliver at the rate of 20,000 feet per week from the date of the contract, ■but that 6,000 feet of that delivered was not of the quality *346called for by the contract. The court below found it was not of such quality, and disallowed plaintiff’s claim to recover for it. But the fact did not affect defendant’s obligation to-pay the $2,000. Aside from the 6,000 feet, the plaintiff had delivered more than the contract, as modified by defendant’s-request, required, before August 1st. The $2,000 was not to be in payment of the lumber delivered before August 1st, nor of any particular lumber, but was to be a partial payment for the whole amount to be delivered under the contract, to wit, the 425,000 feet. The 6,000 feet not being according to contract, and defendant having refused to receive it, he could not be required to include it in the 425,000 feet on the final settlement. That 6,000 feet was as though it. had never been delivered; and plaintiff, having — treating-the 6,000 feet as never having been delivered — performed the contract as modified up to the date when the $2,000 was to be paid, was entitled to receive it. The defendant, therefore, having without excuse refused to perform the contract-on his part, the plaintiff had a right to treat it as at an end, as he has done, and to° recover upon defendant’s implied contract to pay the value of the lumber delivered to and. accepted by him.