Wood, Curtis & Co. v. Seurich

HALL, J.

Plaintiff brought this action to recover damages for failure of defendant to deliver three carloads of apples under a contract, whereby defendant agreed to deliver to plaintiff ten carloads of Bellflower apples of a specified quality for a specified price, shipment to be made between Septem

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her 15, and November 15, 1903, at the convenience of the buyer, say one carload per week. Each car to be paid for upon delivery. Plaintiff’s claim for damages is for the alleged failure of defendant to deliver the eighth, ninth and tenth carloads of apples.

Defendant pleaded as a defense that plaintiff did not comply with the terms of the contract upon its part in this, that defendant delivered a carload of apples (the fifth carload) on the seventh day of October, 1903, which were in all respects in accordance with the requirements of the contract, but that plaintiff refused to pay therefor until the fourteenth day of November, 1903, and that on the twenty-seventh day of October, 1903, defendant delivered a carload of apples to plaintiff (eighth carload), which were in all respects in accordance with the requirements of the contract, but that plaintiff refused to accept or to pay for the same, and never has paid for the same.

Plaintiff attempted to justify its refusal to pay for the fifth carload upon delivery, upon the ground that they were not of the quality required by the contract, but upon confessedly sufficient evidence the court found that they were of such quality.

Plaintiff also attempted to justify its refusal to accept the eighth carload, upon the ground that they were not of the quality stipulated for by the contract, but the court also, upon confessedly sufficient evidence, found that they were of such quality.

The eighth carload was tendered on the twenty-seventh day of October, 1903, and as the evidence of plaintiff discloses was rejected after inspection by plaintiff upon the alleged ground that the apples were not of the quality called for by the contract. As we have just said, the court found upon sufficient evidence that the apples were of the quality called for by the terms of the contract. This justified the finding or conclusion of the court that defendant was excused from further performance by the defaults and failures of plaintiff.