Sun Publishing Co. v. Minnesota Type Foundry Co.

22 Or. 49 | Or. | 1892

Strahan, C. J.

The most that can be claimed for the writing signed by F. E. Hall on the seventh of October, 1890, is that it is an offer on the part of the defendant to sell to A. W. Sefton and J. M. Siglin a printing outfit, comprising a listed invoice, at certain rates of discount; and the letter addressed to the defendant by Siglin & Luse under date of November 7,1890, enclosing list of machinery and material wanted, was a notice to the defendant that Messrs. Siglin & Luse were willing to buy the outfit under the terms previously proposed to Sefton & Siglin, and a request that the same be billed and forwarded to them in a particular manner, and they enclosed their check with said order for $1,200. The question therefore to be determined is whether or not the defendant so complies with its offer to sell and the plaintiff’s order as to create a legal liability or duty on the part of the plaintiff to receive the material shipped and to make payment therefor. The plaintiff directed the defendant to mark goods “Sun Publishing Co., Marshfield, Oregon, care of Coos Bay Coal & Navigation Co., San Francisco, Cal.’’ Instead thereof, the defendant marked and shipped the goods to Flanagan & Bennett, bankers, at Marshfield, Oregon, together with an invoice of the goods so shipped, and bills of lading thereof, accompanied by a draft for $580.59, which was the balance claimed to be due for said goods. The shipments were made in several parts, from November 25, 1890, to December 8, 1890. 'Whether this departure from the plaintiff’s instructions would of itself be sufficient to justify its refusal to take the goods, it seems is unnecessary for us to determine at this time; but some of the authorities to which our attention has been directed appear to hold as much. (Bruce v. Pearson, 3 Johns. 534; Corning v. Colt, 5 Wend. 254; Eliason v. Henshaw, 4 Wheat. 225.) But however this may be, we think, under the facts found by the court, the plaintiff was not bound to receive or pay for the outfit forwarded by the defendant company for other reasons.

On the thirtieth day of December, 1890, Flanagan & Bennett presented the draft for balance of bill to the plaintiff, with invoices of the goods, and offered to deliver the bills of lading, but the plaintiff refused to receive the same or to pay said draft, and a question is made by the plaintiff that its order as to time of shipment and delivery was not complied with. By its order they informed the defendant “ as we desire to make the first issue January 7, 1891, it is desirable that the material be here not later than December 10, proximo, hence will ask you to ship at once and notify us of date of shipment.”

The principle contended for by counsel for respondent is stated in 1 Parsons on Cont. *538, as follows. “And generally wherever in a contract of sale it is stated that some precise fact is to be done by either party, this may amount to a condition, though not so expressed. As when in a contract for sale of goods the words are ‘ to be delivered on or before ’ a certain day, this is a condition precedent, and if they are not delivered on or before that day the purchaser is not bound to take the goods.” And/the principle is that if time appear, on a fair consideration of the language and the circumstances, to be of the essence of the contract, stipulations in regard to it will be held conditions precedent..,.-' (Benj. Sales, § 593; Higgins v. Delaware, etc. R. R. 60 N. Y. 553.)

It appears from finding numbered 5 that the items in the list of goods ordered as stated in a former finding of 175 pounds of long primer No. 11, and 150 of brevier No. 13, were not filled or sent in the shipment of the goods sent, or at all, but that instead thereof the defendant sent in said shipment 176J pounds of long primer and 151 pounds of brevier of a different face from that ordered by plaintiff; that the order was made by reference to a specimen book furnished by the defendant containing samples of the type sold by it, and were in said order designated by numbers appearing on said book. Under these facts the plaintiff was not bound to accept goods differing from the samples appearing in the book furnished it, and from which the selections were made.

Whether the samples in the book furnished by the defendant from which the selections were made rendered this transaction a sale by sample, it is unnecessary to consider for the reason that the plaintiff had the right to repudiate the transaction and to refuse to accept the goods if they were not what it ordered; but the appellant contended on this point that the transaction was divisible, and while the plaintiff was not bound to accept any goods which it did not order, it was bound to accept and pay for such as were ordered by it.

The consideration was entire, and the merchandise ordered was a printing outfit for a country newspaper. This outfit was composed of a vaát number of items, each one having a separate value, but the fact that they did consist of separate items and valuations could hardly be regarded as decisive. Was the type such án essential part of the outfit that a change in its face or style from that ordered would materially affect the outfit? We think it would. A publisher has a right to determine for himself what style of type shall fill his columns, and the manufacturer must content himself by furnishing such as are ordered. In this case the plaintiff may have been unwilling to issue a paper printed on such type as the defendant selected. In such case it was not bound to accept a part of the outfit and then undertake to procure in other markets such a type as it had ordered. Such a course would impose additional expense, risk and delays upon it which it was not bound to incur or assume.

The defendant encounters another difficulty in its endeavor to compel the plaintiff to accept these goods. The plaintiff had the right to examine and inspect the goods before it could be required to accept and pay for the same. It is elementary law that in offering delivery the vendor is bound to give the buyer an opportunity of examining the goods, so that the latter may satisfy himself whether they are in accordance with the „ contract. (2 Benj. Sales, § 1042; Croninger v. Crocker, 62 N. Y. 151.) Under the findings in this case, the plaintiff never had the opportunity to inspect said goods. The invoices were delivered, and Messrs. Flanagan & Bennett offered to deliver the bills of lading on payment of the draft, but this being refused, nothing further was done.

A careful examination of the record fails to disclose any error in the judgment appealed from, and the same must therefore be affirmed.