Polson Logging Co. v. Neumeyer
| Decision Date | 07 February 1916 |
| Docket Number | 2584. |
| Parties | POLSON LOGGING CO. v. NEUMEYER et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bridges & Bruener, of Aberdeen, Wash., for plaintiff in error.
John W Roberts and Nelson R. Anderson, both of Seattle, Wash., for defendants in error.
This action was brought to recover the alleged agreed value of certain bars of steel alleged to have been ordered in writing by the defendant to the action (plaintiff in error here) from the plaintiffs (defendants in error), the delivery to be made f.o.b. Hoquiam, state of Washington, which the plaintiffs in their complaint alleged were so delivered, and for which the complaint alleged the defendant company promised, but afterwards refused, to pay. Those allegations of the complaint were put in issue by the answer of the defendant, which also set up as an affirmative defense certain alleged frauds upon the part of the plaintiffs' salesman who procured the order (to be set out in full), and lack of authority on the part of the defendant's representative who signed the order. The order is as follows:
'No 2012.
Sept. 11, 1912.
'Neumeyer & Dimond, New York.
'Enter our order for the following:
2 bars each 2' Rd. 1-3/8' Rd. Clevis Steel
1 bars each 2 1/4' Round Swivel Eye Steel
7 bars each 1 1/4' x 4 1/2' Chaker Hook
2 bars each 1 1/4' Rd. -2 1/2' Rd. Block Hook Steel
2 bars each 2 1/4' Round Line Hook Steel
2 bars each 5/16' x 14' Block Side Steel
2 bars each 2-3/4 ' . . . Sledge Steel
2 bars each 2' Rd-2 1/2' Rd-1-13/16' Rd. Piston Rod Steel
1 bars each 1 1/4' Round Valve Rod
1 bars each 7/16' x 3 1/2' Locomotive Spring Steel
25 bars each 1' x 2' Dog Hook Steel
1 bars each 5/8' Oct. 2 bars 3/4' Oct. Cold Chisel
2 bars each 2' . . . 1 1/2' . . . 1-3/8' . . . 1 1/4 ' . . . Track & Bull Chisel
1 bars each 3 ' . . . Splitting Wedge Steel
12 bars each 1' x 3' Falling & Bucking Wedge
12 bars each 7/8 Rd. -1' Rd-1-1/8' Rd-1-1 1/4' Rd Cold Shut
50 bars each 3/4' Round
2 bars each 1' Round Roller Bearing Steel
250 ft. 1 1/4' x 6' Draw Head Steel
bars 20 ft. long cut in two at 12 1/2Secs. lb.
8 ft. each 3' . . . 4' . . . Die Steel (Ann.) 17Secs. lb.
'F.O.B. Hoquiam, Wash.
'Polson Lg. Co. Order #653 as per copy left with us of this order.
'Terms 2% 10 days, 30 days net.
(Signed) Polson Logging Co.
'J. C. Shaw.'
On one side of sheet:
'This order is taken subject to delay in delivery caused by strikes, differences with workmen, serious fires, accidents to machinery, or other causes unavoidable or beyond our control.
Before GILBERT and ROSS, Circuit Judges, and RUDKIN, District Judge.
ROSS Circuit Judge (after stating the facts as above).
Whether tested by the strict rules of the common law, or the rule contended for by the defendants in error, requiring only a substantial compliance with the terms of the contract by the seller, we should have no difficulty in holding that such a departure in the matter of the length of the bars and such excess in weight of the steel, resulting in an additional cost over the contract price to the purchaser of more than $300, is not sanctioned by either of the rules referred to, and would have justified the latter in refusing to accept the shipment in question, had such refusal been seasonably made on those grounds. But the case shows that the purchaser refused to receive the steel so shipped solely upon the grounds that the sellers' solicitor was guilty of fraud in procuring the order, and that the defendant's employe was without authority to give it, and therefore that there was no sale or purchase.
The objections now relied upon to defeat the action were confessedly not made until about a week before the actual trial of the case-- long after the suit had been brought, and more than a year after the steel had been shipped to the purchaser, during which time the respective parties were disputing by telegraph and letter over the fact of the alleged sale and the alleged fraud and lack of authority on the part of their respective employes.
We think the objections now relied upon were made altogether too late. It is quite true that mere silence at a time when there is no occasion to speak is neither a waiver nor evidence from which a waiver may be inferred-- especially when unaccompanied by any act calculated to mislead the other party. But surely a buyer of merchandise must either accept or reject it when tendered by the seller, and is bound to do one thing or the other within a reasonable time. In the present instance the buyer made no objection within any reasonable time to the overweight of the steel nor to...
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