Hart-Parr Co. v. Finley
| Decision Date | 15 June 1915 |
| Citation | 153 N.W. 137,31 N.D. 130 |
| Parties | HART-PARR CO. v. FINLEY. |
| Court | North Dakota Supreme Court |
Before time fixed for delivery, defendant gave notice of cancellation of his written and accepted order of plaintiff for a traction engine. Plaintiff refused to permit cancellation, insisting upon performance, with defendant repudiating the contract and declaring that he would not accept or pay for the machine. Plaintiff thereafter tendered it, and, upon defendant's refusal to accept it, left the engine at defendant's farm against his protests and without his consent. Plaintiff claims title passed as on a delivery and sues for the purchase price, $2,400, and freight $104 additional. Held, the doctrine that there can be no anticipatory breach of an executory contract of purchase and sale, adopted in Stanford v. McGill, 6 N. D. 536, 72 N. W. 938, 38 L. R. A. 760, is overruled, and the overwhelming weight of authority, both English and American, followed.
The unconditional notice of cancellation, though not acquiesced in by plaintiff, operated to relieve defendant from damages resulting from the acts done by plaintiff in performance of the contract subsequent to notice of cancellation, and relieved defendant from freight charges incurred by plaintiff after such notice of cancellation.
Though plaintiff could keep the contract alive and insist upon its performance up to the time for delivery and could incur freight expense in so doing after notice of cancellation, its right to recover for it depends upon defendant's subsequent withdrawal of his repudiation and subsequent performance.
The incurring of the freight charge after notice of cancellation received is an enhancement by plaintiff of its own damages and not recoverable, unless suit can be maintained for the purchase price.
Unless the contract stipulates the contrary, delivery and acceptance of property and vesting of title thereunder and payment of the purchase price therefor are concurrent acts, and, until delivery and acceptance, title does not vest, and the purchase price payable only on the vesting of title is not recoverable in a suit for the purchase price.
To constitute a valid delivery on sale of personal property, there must be an acceptance of it by the purchaser or his agent. Constructive delivery may be an exception.
In the face of a refusal to receive delivery and the property in performance of a contract of purchase and sale, the purchaser standing on a repudiation of it declared while the contract was wholly executory with repudiation not subsequently waived or withdrawn, title cannot be cast upon the purchaser by operation of law.
The attempted delivery did not vest title, and suit for the purchase price cannot be maintained, nor can the freight charges incurred after notice of cancellation be recovered.
The contract cannot be construed as authorizing a recovery independent of delivery of property or vesting of title in defendant, but instead is a contract of purchase and sale with payment conditioned upon the passing of title.
Appeal from District Court, Grand Forks County; Cooley, Judge.
Action by the Hart-Parr Company, a corporation, against Frank Finley. From a judgment for defendant, plaintiff appeals. Affirmed, and rehearing denied.
George A. Bangs and George R. Robbins, both of Grand Forks, for appellant. O. B. Burtness, of Grand Forks, for respondent.
This action is to recover $2,400 damages as the purchase price of an engine plaintiff claims to have sold and delivered defendant, together with an additional $104 freight charge thereon. June 10, 1912, defendant executed and delivered the usual written machinery order to plaintiff. It was duly accepted. Before the stipulated time for delivery, defendant notified plaintiff he would not receive the engine and to cancel his order. Plaintiff refused cancellation, insisting upon full performance. On receipt of defendant's written notice of revocation, and on June 29th, plaintiff wrote defendant as follows:
Defendant's reply, duly received, was:
On July 15th, the earliest date fixed for performance, plaintiff tendered the engine to defendant f. o. b. at Forest River, according to the terms of the contract. He refused to accept it or to execute and deliver his notes or pay the freight. On August 13th, and within the stipulated period for performance, plaintiff took said tractor to the home of defendant, and unconditionally tendered it to him in performance of its obligation. Defendant refused to receive the engine, which plaintiff then left at his farm, against his expressed wishes and protest and without his consent. The freight from the factory to Forest River was $104.
These are the findings. The appeal is from the judgment of dismissal, raising only the legal conclusions to be drawn from the findings. The decision is the answer to whether a suit can be maintained for the purchase price and freight added, as for damages suffered by the failure of the defendant to receive the stock engine ordered for future delivery to him, where, before the time for delivery, he had given plaintiff his unequivocal and unconditional notice of cancellation of his order and that he would neither receive the engine nor pay for it, with defendant refusing to receive or pay for the engine and insisting upon his repudiation.
Plaintiff claims: (1) That the attempted cancellation and notice was ineffectual for any purpose and amounted to but defendant's offer that the contract might be canceled, which offer was rejected, leaving the written contract in force, under which, however, it was not obliged to tender the engine in the face of the defendant's offer and refusal to receive it, but nevertheless it claims it did deliver it to him, and thereby parted with its title, and therefore can recover damages as for the purchase price; and (2) irrespective of the passing of title, the order should be construed as authorizing a recovery for $2,400 and freight, inasmuch as such is plaintiff's contract rights, because payment was not conditioned upon the passing of title as a condition either precedent or concurrent. Defendant asserts that: (1) Title did not vest in defendant, as the contract was repudiated before delivery, upon which repudiation an action for damages only for such breach is accorded to the seller, with the measure of damages recoverable fixed by section 7156, C. L. 1913, as declared, where the title does not pass to the purchaser; and (2) that a purchaser has a right to stop performance of an executory contract of purchase and sale by notice of its cancellation, and the question of breach of contract by anticipation is not involved; and (3) that, upon notice of cancellation, it became the duty of the seller to mitigate its damages, rather than enhance them, and that freight paid for the shipment made after notice of cancellation was such an enhancement of its damages.
The questions presented are whether: (1) This purchaser had a right to cancel his executory contract of purchase while it remained wholly executory; (2) the effect of his attempted cancellation thereof; (3) the measure of damages for the breach; and (4) the effect of cancellation to mitigate such damages.
[1] The difficulty is not in passing upon the issues in the light of the common law alone or of our statutes but declaratory thereof, but instead arises in their solution in harmony with both the common law and consonant in reason with the holding and the principles announced in Stanford v. McGill, 6 N. D. 536, 72 N. W. 938, 38 L. R. A. 760, wherein was repudiated the common-law doctrine that there could be an anticipatory breach of a wholly executory contract of purchase and sale. Stanford v. McGill is the bulwark behind which the plaintiff is entrenched. Under the doctrine of that case, it reasons that this attempted cancellation is ineffectual, except to relieve it from the necessity of making a tender; that the contract never was breached until refusal to accept the tendered property; that the attempted cancellation in no wise relieved defendant from his obligation to purchase and pay the purchase price, inasmuch as it constituted but a mere offer, the rejection of which left the contract unaffected, and under which it has performed promptly and punctually upon the first day upon which it could elect to perform; that it thereby cast title upon defendant and can recover the purchase price therefor; that it can recover as damages for freight paid, because, if it can disregard the cancellation at its pleasure, that cannot logically furnish a foundation for minimizing such damages necessarily incurred in moving the machine to Forest River, that it might be there for tender on July 15th; that, under the reasoning of Stanford v. McGill, it had the right to expect that, notwithstanding defendant's attempted repudiation, he would nevertheless repent thereof upon a tender made to him, and perform; that accordingly it had the right to make shipment and place itself in readiness to perform its part on the first...
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