45 Neb. 654 | Neb. | 1895
On December 4, 1890, the parties to this action entered into a contract as follows:
“Bought of Mason Gregg five (5) cars new shelled corn, track Ohiowa or Tobias, at forty-five (45) cents per bushel, his weights, billing on same to be given by December 10, 1890. Yan Yalkenburgh & Son.”
It is agreed that the corn was shipped in large cars, three of which carried what the parties had understood as five cars. On the 6th of December Yan Yalkenburgh & Son wrote Gregg as follows:
“Please ship us at Beaver City one large car new corn. Draw on us through First National Bank, Minden, and have it come direct here with invoice. Parties are anxious for this car. Yan Yalkenburgh & Son.”
The car was shipped and was received by Yan Yalkenburgh & Son. On the 10th of December the following letter was written by Yan Yalkenburgh &Son:
*656 “Please ship at once a large car corn to us at Beaver City, and on Monday next load another large car to us at Beaver City. These three large cars that we have ordered will make the 2,500 bushels ordered and bought of you. Can you sell us more at same price? Would be pleased to hear from you how you understand these orders, and if you will'ship them promptly.
“ Van Valkenburgh & Son.”
Gregg on receipt of this letter shipped the second car, and on the following Monday, being December 15, shipped the third car. The second car was received by Van Valkenburgh & Son. On the 15th, but after Gregg had' shipped the third car, Van Valkenburgh & Son telegraphed him:
“ Don’t ship third car to Beaver City. Parties there refuse. Van Valkenburgh & Son.”
The car had already gone, and Van Valkenburgh & Son refused to receive it. Gregg, on learning of their refusal, shipped it to Salt Lake City, sold it there, and brought suit against Van Valkenburgh & Son for the difference between the contract price and the amount realized. He recovered judgment, from which Van Valkenburgh & Son prosecute error.
The car occasioning the controversy was loaded at Ohiowa and consigned by Gregg to himself at Beaver City. The bill of lading was then sent by Gregg’s agent to Gregg at Lincoln, where Gregg made a draft on Van Valkenburgh & Son, and, attaching the bill of lading thereto, sent it to Minden, where Van Valkenburgh & Son conducted their business. The right of recovery in this case depends upon whether Gregg tendered delivery of the car at the place where he had contracted to deliver it. Van Valkenburgh & Son claim that the contract was for delivery to them at Ohiowa or Tobias. Gregg claims that the price was merely fixed at those points, but that he was justified in consign
It is contended that the circumstances and the conduct of the parties indicate a different construction, because the other two cars were shipped in the same manner and accepted by the vendees; but although the vendees did accept the other cars, they wrote twice to the vendor complaining of the manner in which they had been shipped, on the ground that by such method the car arrived several days before the vendees could obtain possession of it through the bill of lading, and that the carrier subjected them to demurrage in consequence. The acceptance of these cars so billed waived only a departure from the contract as to these cars, and did not alter the terms of the contract for the corn not yet shipped.
It is also claimed that it was necessary for Gregg to ship in that manner in order to secure payment. The answer to this contention is that had he desired to protect himself in such manner he should have so stipulated in the contract. It is probable that, under the terms of the contract, the vendee should have been present at Ohiowa to pay for the cars, and that if Gregg had tendered the corn at Ohiowa and refused to ship until payment was made there, this would have been a sufficient compliance; but having contracted to deliver at Ohiowa, he had no right under the terms of his contract to attempt to deliver elsewhere, whatever his motive may have been.
It is argued that the vendees refused to accept solely because the price of corn had fallen at Beaver City. This is all immaterial to the case. If the vendor did not tender compliance with the contract, the motive of the vendee in refusing to accept otherwise than as provided in the contract does not affect the case.
The evidence does not sustain the verdict, and the judgment must be reversed. As the cause must be remanded for a new trial, it may be well to direct attention of coun
Reversed and remanded.