Star Brewery Co. v. Horst, 120 F. 246

Star Brewery Co. v. Horst

120 F. 246

| 7th Cir. | 1903

BAKER, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

The evidence warranted the jury in finding that the hops were of proper quality and that the brewery corppany’s refusal to accept them was prompted by a great decline in the market price. In view of the prior dealings between the parties, shown by the record, we attach no importance to Horst Bros.’ failure to prepay the freight. On shipments that had been accepted, the brewery company had been paying freight and charging bade the amount to Horst Bros.; *247and no objection was made to the present shipment on that the freight had not been prepaid. Treating the freight as prepaid, and the brewery company’s refusal to accept as perverse, there remains the question of Horst Bros.’ right to recover for goods sold and delivered. The parties had the right to make a contract which would require the brewery company to accept Horst Bros.’ selection of choice California hops and to pay within io days after the_ arrival of the car at Belleville. But the contract they entered into in 1890 bound Horst Bros, to an agreement to sell and deliver in 1895 an article which would have no existence until then, and bound the brewery company to an agreement to purchase, receive, and pay for that article. This was not a sale. The minds of the parties had never met on a specific, identified thing as the object of barter. Their minds could not meet until Horst Bros, had made an appropriation of a specific, identified thing as a fulfillment of the contract in that respect, and until the brewery company had accepted or acquiesced in that appropriation. Under this contract, neither Horst Bros, nor any third party was authorized to make a binding selection and appropriation for the brewery company. The brewery company never consented to the appropriation. That it should have done so is of no consequence in this action for the price of goods sold and delivered. If a party purchases, he may be held to pay for the thing. If he agrees to purchase and refuses, the remedy is for breach of the contract to purchase. 2 Benj.” Sales, §§ 1051, 1117; 1 Mechem, Sales, §§ 729, 730; 2 Mechem, Sales, §§ 1369, 1370; Pope v. Allis, 115 U. S. 363, 371, 6 Sup. Ct. 69, 29 L. Ed. 393.

The judgment is reversed, with the direction for further proceedings not inconsistent herewith.