M. A. Newmark & Co. v. Smith

This is an action to recover damages alleged to have been sustained by reason of defendant's partial default in delivering a quantity of beans in accordance with his contract so to do. The verdict of a jury called to try the case was in favor of defendant. Judgment followed in accordance therewith, from which, and an order denying its motion for a new trial, plaintiff appealed.

On July 10, 1911, plaintiff bought from defendant one thousand bags of "choice, recleaned, small white beans of the crop of 1911," to be delivered in October, f. o. b. cars at Santa Maria, California, for which it agreed to pay $3.21 1/4 per hundredweight; and on the 18th of the same month bought a further like quantity of the same kind of beans for like delivery at the price of $3.25 per hundred. These contracts were evidenced by bought and sold notes whereby the one agreed to buy and the other agreed to sell. In October defendant shipped to plaintiff at Los Angeles two lots of beans, one consisting of 788 sacks delivered, as stated, on account of the first contract, and the other lot consisting of 673 sacks, which shipment was by defendant assigned as delivered under the second contract. Payment for both of these shipments was made by plaintiff by check forwarded to defendant, which the latter accepted in full payment therefor. In delivering the third lot of beans, consisting of 362 sacks, which he shipped about November 20th, defendant changed the mode and plan of delivery by shipping the same to Los Angeles, consigned to himself, and attaching the bill of lading to a draft drawn upon plaintiff for the price thereof, thus making it impossible for plaintiff *Page 341 to examine the shipment or inspect the beans without first paying the draft. Upon presentation of the draft plaintiff, without paying same, wrote defendant on November 21st, asking him to direct the bank to permit an inspection of the beans, in reply to which defendant on the next day wrote plaintiff that "there is nothing in the contract that allows inspection, and delivery of beans in Los Angeles," and declared the contract annulled.

It thus appears that defendant, while retaining title and possession of the goods and while denying plaintiff's request for an opportunity to inspect the same for the purpose of ascertaining whether they conformed to the description as specified in the contract, tendered delivery thereof, coupled with the precedent condition that plaintiff pay the purchase price thereof. The sole question, therefore, involved is, whether plaintiff, in the absence of a waiver thereof, as to which there is no evidence, was entitled to inspection as a condition precedent to the making of payment. If so, then defendant was not justified in his refusal to comply with the contract.