Willamette Steam Mills Lumbering & Manufacturing Co. v. Union Lumber & Supply Co.

McFarland, J. The complaint contains two counts, — one for the value of certain posts and lumber alleged to have been sold by plaintiff to defendant, and delivered at Burwell, in Los Angeles County, and the other for certain other lumber sold and delivered by plaintiff to defendant, to be used in the normal school building. The court found that defendant was indebted to plaintiff on the first count in the sum. of $722.59, and on the second count in the sum of $715.23, and rendered judgment for the plaintiff for the sum of said two amounts, viz., $1,437.82. Defendant appeals from the judgment, and from an order denying a new trial,

1. As to the first count, it appears that there had been a special contract between the parties, by which plaintiff was to deliver to defendant at Burwell 39,340 feet of fencing lumber, and 1,064 split posts, for $782.48, terms, “ spot cash upon delivery of the total amount of lumber and posts.” The plaintiff delivered nearly all of the lumber mentioned in the contract, and it was accepted and retained by defendant; but there was a dispute. between the parties as to whether the total amount had been delivered, and defendant refused to pay anything, upon the theory that nothing was due until the total amount had been delivered, whereupon plaintiff commenced this action for the value of lumber sold and delivered. The court found that plaintiff had delivered all the lumber except 3,422 feet of the 39,430 feet of fencing which the contract called for.

The contention of appellant is, that as a portion of the lumber mentioned in the contract was not delivered, therefore nothing was due, and the action cannot be maintained. This contention involves the proposition that appellant could keep and use all the lumber received and retained by it without paying for it. There has been, no doubt, some conflict of authorities as to the rights of parties in the situation of the parties to this action; but the true rule is stated in the opinion of the court in Polhemus v. Heiman, 45 Cal. 577. In that case the contract was for the delivery of “ about fifty-three thousand [158]pounds ” of wool, and only 47,315 pounds had been delivered, but the defendants had retained the amount delivered. The court, in discussing defendant’s right to recover damages for the part not delivered, alludes to the want of exactness growing out of the use of the word “ about,” and then proceeds as follows: “ If, however, the quantity delivered was less than the quantity contracted for, the vendees were at liberty to refuse to accept it. And having accepted a part, they might have returned that and refused to accept less than the whole. But having received and retained a part, they cannot refuse to pay for the part accepted.”