Walker v. Davis ( 1889 )

The contract for the sale of the wood was an entire contract. Gault v. Brown, 48 N.H. 183. The first wood delivered was not properly sorted, through the fault of the plaintiff's servants, and between twenty and thirty cords of a different quality from that contracted for were loaded on the cars at Grafton and forwarded to the defendant at Franklin. The plaintiff, learning that the wood forwarded was not according to the contract, wrote to the defendant stating how it happened to be sent, enclosing a bill for it in which a discount was made because it was not according to contract, and stating that the defendant could pay this bill, or sort the wood to conform to the contract, and charge the expense to him, and promising to conform to the contract in the future. The defendant, upon ascertaining that the wood was not according to the contract, notified the plaintiff that he did not consider himself under any obligation to take any more of the wood, and that he should not do so, for the reason that the plaintiff had broken the contract. The case finds that the defendant did not waive his right to rescind, if upon the facts he could rescind.

A party to a contract is not bound to accept anything less than a full performance, according to its terms and conditions. The wood forwarded up to the time of the attempted rescission was not in compliance with the contract, and the defendant refused to accept it as such, and notified the plaintiff that he rescinded the contract. This he had a right to do. The wood delivered not being such as the contract called for, the defendant was not bound to receive it. The plaintiff's letter, insisting on an acceptance of the wood and a variation from the original contract, presented the alternative to the defendant, either to accept the wood at a reduced price, or sort it to conform to the contract, charging the expense to the plaintiff. The defendant was under no obligation to do either. If all the wood contracted for had been delivered at once containing the wood delivered up to the time the notice of the rescission was given, the defendant would not have been compelled to accept it, because it was not of the quality stipulated for.

Judgment for the defendant.

ALLEN, J., did not sit: the others concurred.