Redlands Orange Growers' Ass'n v. Gorman

• Decision Date: 26 March 1901
• Citation: 61 S.W. 820,161 Mo. 203
• Parties: REDLANDS ORANGE GROWERS' ASS'N v. GORMAN.
• Court: Missouri Supreme Court

61 S.W. 820

161 Mo. 203

REDLANDS ORANGE GROWERS' ASS'N v. GORMAN.

Supreme Court of Missouri, Division No. 2.

March 26, 1901.

SALES — SHIPMENT — STIPULATION AS TO DATE — WARRANTY — WAIVER — DAMAGES.

Where plaintiff, who had contracted to ship oranges to defendant not later than a specified date, shipped them at a later date, and they were accepted by defendant without protest, the price having fallen in the meantime, defendant did not, by such acceptance, waive his claim for damages for the breach of the contract, since the stipulation as to the time of shipment was a warranty.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by the Redlands Orange Growers' Association against John Gorman. Judgment for defendant, and plaintiff appealed. Certified from the St. Louis court of appeals, on affirming a judgment allowing defendant's counterclaim, on certificates of conflict. Affirmed.

L. R. Wilfley, for appellant. D. P. Dyer, for respondent.

GANTT, J.

This cause has been certified to this court by the St. Louis court of appeals because Judge Bond, one of the judges of said court, considered the opinion of the majority of the judges of that court to be in conflict with a decision of this court. The facts appear in the opinion of Judge Biggs. His opinion is as follows:

"The plaintiff sues for four hundred and eighty-six dollars and fifty cents. The defendant set up in his answer a counterclaim for four hundred and fifty dollars as damages growing out of the failure of the plaintiff to ship the goods within the time stipulated in the contract. A jury was waived, and the cause submitted to the court on the following agreed statement of facts: `(1) The plaintiff is a corporation organized under the laws of the state of California. The defendant is a citizen of the state of Missouri, and a resident of the city of St. Louis, and engaged in the business of a merchant at said city under the name and style of John Gorman & Bro. (2) On the 19th day of December, 1895, the plaintiff contracted to sell to the defendant two car loads of oranges, to wit, one car to contain three hundred boxes of fancy Redland naval oranges, at the price of two dollars and fifty cents per box; the other car to contain three hundred boxes of fancy Redland seedling oranges at the price of one dollar and seventy-five cents per box. (3) The plaintiff, at the time of said sale, specially agreed with the defendant as part of said contract to deliver said oranges free on board of railroad cars at Redlands, California, and to cause the same to be shipped to the defendant not later than December 21, 1895, as the defendant desired the oranges at St. Louis as early as possible, of which the plaintiff was at the time of said contract informed. (4) The said oranges were not delivered on said cars by the plaintiff on the 21st of December, 1895, and were not shipped to the defendant on that date, but said oranges were (without the knowledge or consent of the defendant) delivered by plaintiff on board of cars at Redlands, and by him caused to be shipped to the defendant on the 23d and 24th days of December, 1895. One of said cars being loaded and shipped on the 23d and the other on the 24th day of December, 1895. (5) At the time when said oranges arrived at St. Louis, and when they were delivered to the defendant, the market value of said oranges was four hundred and fifty dollars less than it was at any time at which said oranges would have arrived at St. Louis, or at which they would have been delivered to the defendant if they had been shipped within the time provided by said contract. (6) The defendant received notice by letter from the plaintiff two days prior to the arrival of said oranges in St. Louis of the dates at which the same had actually been delivered at and shipped from Redlands, California. (7) Upon the arrival of said oranges at St. Louis, the defendant, having notice of shipment as aforesaid, accepted the same without objection or protest. (8) The contract price of the oranges actually shipped as aforesaid amounted in the aggregate to the sum of $1,236. The defendant had paid to plaintiff of said amount the sum of $749.50, and refused, and still refuses, to pay the balance, to wit, $486.50, being the amount herein sued for. (9) It is agreed, if the defendant is entitled to any damages on his counterclaim, the amount of $450 shall be allowed therefor, and in such case the judgment shall be in favor of plaintiff for $36.50 and costs; otherwise, the judgment shall be for $486, with interest from the 1st of January, 1896, and costs.' The court allowed the defendant's counterclaim, and rendered judgment in favor of plaintiff for $36.50, and for costs. The plaintiff has appealed.

"The position of the appellant is that, when goods are delivered out of time, and the vendee accepts them without protest, he thereby waives his right to damages resulting from the breach of the contract, except where the goods are accepted of necessity; that is, where the surrounding circumstances are such as to make it necessary for him to accept in order to avoid the accumulation of much greater damage. We cannot accede to this view of the law. We believe the law to be that, where time is made the essence of the contract, delay beyond the stipulated time in the shipment or delivery of goods does not preclude the vendee from accepting them. If he does so, and is damaged on account of the delay, and he has paid the purchase money, he may bring this action, and recover his damage. If he has not so paid, he may recoup his damage when sued for the purchase price. The authorities treat such a stipulation in the name of a warranty or condition precedent that the goods will be shipped or delivered within the stipulated time. Beach, Mod. Com. Law, § 616. To hold that in such case an acceptance out of time, without objection or protest, is a waiver by the vendee of his claim for damages resulting from the violation of the agreement, is, to our minds, unreasonable. With equal reason it could be said that, where goods are bought with an express warranty of quality, and goods of an inferior quality are accepted by the vendee, he thereby waives his right to rely on the warranty. All of the authorities are against that proposition. Our views find ample support in the authorities. Lord Blackburn, in his work on Contracts, states the law on the subject as follows: `When the contract was to deliver goods at a certain date, and that date is passed, the vendee may accept the goods, and bring his action for any damages...