Moran v. Wagner

Mr. Justice Robb

delivered the opinion of the Court:

The only question in this case is whether appellant was legally justified in rescinding the contract. That the contract in this case is a single contract is clearly determined by the decision of th Supreme Court of the United States in Norrington v. Wright, 115 U. S. 188, 29 L. ed. 366, 6 Sup. Ct. Rep. 12. In that case action was brought upon a contract for the sale and purchase of 5,000 tons of iron rails “at the rate of about one thousand (1,000) tons per month, beginning February, 1880, but whole contract to be shipped before August 1, 1880, at forty-five dollars ($45) per ton of 2,240 lbs. custom-house weight, ex ship Philadelphia. Settlement cash on presentation of bills accompanied by custom-house certificate of weight.” Through Mr. Justice Gray, the court said:

“The contract sued on is a single contract for the sale and purchase of 5,000 tons of iron rails, shipped from a European port or ports for Philadelphia. The subsidiary provisions as to shipping in different months, and as to paying for each shipment upon its delivery, do not split up the contract into as many contracts as there shall be shipments or deliveries of so many distinct quantities of iron. Mersey Steel & I. Co. v. Naylor L. R. 9 App. Cas. 434, 439. The further provision that the sellers shall not be compelled to replace any parcel lost after shipment simply reduces, in the event of such a loss, the quantity to be delivered and paid for.”

In the instant case, instead of 5,000 tons of iron rails the eon-tract called for eighteen cars of- oats, and, as cars undoubtedly vary somewhat in capacity, the quantity to be contained in each car was specified at between 1,400 and 1,500 bushels.

The contract being an entire contract, we think the case is ruled by the Norrington v. Wright Case, and that the learned court below erred in directing a verdict for the plaintiff upon the first count. The jury found that the oats in the last shipment tendered the defendant were not No. 2 oats; in other words, that they were not such oats as the contract called for, and that the defendant was justified in declining to accept them. We fail to perceive any difference between a failure to deliver the quantity of oats at the time agreed upon, and the failure to deliver the kind or quality of oats called for under the contract. The jury were, in effect, instructed that they must find a material difference between the oats in this car and No. 2 oats as defined by witnesses, to justify the defendant in declining to accept them. The jury so found, and the fact of such .material difference was thereupon settled. We do not think the defendant was called upon to wait until another shipment was received, before he determined to rescind the contract. On the contrary, we think the breach of the contract by the plaintiff entitled the defendant, immediately the breach became known, to rescind the contract in toto, provided only that he acted with due diligence. Again quoting from Norrington v. Wright:

“But the contract before us comes within the general rule: ‘When no such independent circumstances are referred to, and the engagement is to furnish goods of a certain quality or character to a certain amount, the quantity specified is material and governs the contract. The addition of the qualifying words “about,” “more or less,” and the like, in such cases, is only for the purpose of providing against accidental variations arising from slight and unimportant excesses or deficiencies in number, measure, or weight.’ Brawley v. United States, 96 U. S. 168, 171, 172, 24 L. ed. 622, 623, 624. The seller is bound to deliver the quantity stipulated, and has no right either to compel' the buyer to accept a less quantity, or to require him to select part out of a greater quantity; and when the goods are to be shipped in eertain proportions monthly, the seller’s failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all of the goods should be delivered at once. * * * Being of opinion that the plaintiff’s failure to make such shipments in February and March as the contract required prevents his maintaining this action, it is needless to dwell upon the further objection that the shipments in April did not comply with the contract, because the defendants could not be compelled to take about 1,000 tons out of the larger quantity shipped in that month, and the plaintiff, after once designating the names of vessels, as the contract bound him to do, could not substitute other vessels. See Busk v. Spence, 4 Campb. 329; Graves v. Legg, 9 Exch. 709; Reuter v. Sala, L. R. 4 C. P. Div. 239.”

In the above case, rails of the right quality, but less in quantity than the contract demanded, were contained in the shipments which formed the basis for the rescission of the contract. The only difference, therefore, between that case and the present case, is that in one the contested shipments contained the right quality, but the wrong quantity, while in the other the contested shipment contained the right quantity, but the wrong quality. We think the statement of the difference between these eases points to the conclusion that quality is as much of the essence of the contract as quantity. The result certainly would be remarkable, should we hold that under the authority of Norrington v. Wright the delivery of a car containing 1,300 bushels, instead of 1,400 bushels, of No. 2 oats, would justify the rescission of the contract, but that the delivery of a car containing 1,400 bushels of oats of an inferior grade, and therefore not susceptible of use by the defendant, would not. Had a car been delivered containing 1,300 bushels of No. 2 oats, he could have used the whole quantity immediately, and the delay incident to the delivery of the 100 bushels would not have been a very serious matter; but when a car containing oats he could not use and which he had not bought was shipped him, he certainly was injured.. That some other dealer bought and cleaned these oats, and thereby made them merchantable, has nothing to do with this case. Appellant contracted for one thing, and received another which he was not bound to accept.

We attach no significance to the fact that in this case the contract was not rescinded until after several deliveries had been made. The contract demanded that each shipment should be No. 2 oats, and it is obvious that until some shipment fell below that grade there would be breach, and no right of rescission.

When a shipment, whether the first or the last one, fell below contract grade, the right of rescission accrued. The judgment is reversed, with costs. Reversed.