Hageman v. Ule , 188 Wis. 617 ( 1926 )

Rosenberry, J.

The questions presented here lie within a very narrow compass. The facts are practically undisputed. Plaintiffs claim that they were ordered by defendants to stop hauling gravel. Defendants admit that they refused to accept the gravel because it contained too much sand. There was evidence tending to establish plaintiffs’ contention that by putting on a larger crew and working night and day they could have furnished gravel in sufficient quantities and as required under the contract. The defendants’ reason for refusing to accept further deliveries of gravel was that it contained too much sand and that plaintiffs could not furnish it fast enough. The referee found that the whole evidence indicates that the gravel, with one unimportant exception, complied with the specifications; that the defendants’ claim that plaintiffs were not equipped to furnish gravel in sufficient quantities as needed is not supported by the evidence; that defendants should at least have given plaintiffs opportunity to show what they could do. The court sustained the conclusion of the referee that the defendants were not entitled to damages for failure to deliver the gravel on the ground that there was evidence sufficient, if uncontradicted, to support the referee’s finding. In reaching this conclusion the referee overlooked an important and vital element in the transaction. The evidence is undisputed that the gravel tendered by the plaintiffs, in fulfilment of their contract contained from five to twenty per cent, sand; that under the specifications for the construction of the highwaj'' the gravel was required to be free from sand to the knowledge of both parties. After the gravel tendered in fulfilment of the contract had been rejected by the inspector representing the highway commission, it was re-screened. It did not then comply with the specifications and was again rejected. There was nothing in the contract or in the course of dealing between ‘ the parties or in the law that required the defendants to suspend operations and permit the plaintiffs further opportunity to delive'r gravel of the grade specified. No cases are cited which deny the right of the defendants to recover damages for the failure of the plaintiffs to deliver the goods, under the circumstances of this case. Where the goods tendered in performance of the contract are not of the grade or quality specified in the contract the buyer may reject the same, and he is not required to permit the seller to regrade or make substituted delivery. Contracts for goods of a specified quality to be delivered at a time certain do not contemplate deliveries by the trial-and-error method. The contract by its terms contemplated that acceptable gravel was to be delivered to be used in the course of this construction work as and when needed. The plaintiffs apparently made a good-faith attempt to comply with their contract. Either because of defective operation or defective machinery they were unable to do so. The burden of their default, however, must rest upon them and not upon the defendants, who were prepared and ready to receive gravel of the contract grade had it been tendered.

By the Court.- — -That part of the judgment appealed from is reversed, and the cause is remanded with directions to allow the defendants to recover upon their counterclaim for damages by reason of the failure of the plaintiffs to deliver 830 cubic yards of gravel.