Sun Publishing Co. v. Minnesota Type Foundry Co.

Contracts—Time of Performance—Condition Precedent.—In contracts for the sale of personal property, if time appear to be of the essence thereof, on a fair consideration of the language and circumstances, .stipulations in regard to it will be construed as conditions precedent. Sale of Chattels—Entirety of Contract.—The consideration being entire, and the goods having been ordered for a particular purpose known to the seller, the buyer is not bound to accept aE or any part of those tendered unless they all substantially meet the requirements of the contract, although some of the goods may be of the kind ordered. Contract of Sale—Inspection of Goods.—In offering deHvery under contracts for the sale of personal property, the vendor is bound to give the vendee a reasonable opportunity to satisfy himself by inspection of the goods, before paying for them, that they are in accordance with the contract.

Coos county: M. L. Pipes, Judge.. Defendant appeals. The questions of law argued upon this appeal arise upon the findings of the court below, which findings are .as follows: “The above-named action came on to be heard at the regular term of said court, the plaintiffs appearing by their attorneys, J. M. Siglin and S. H. Hazard, and the •defendant by its attorney, John Gray; and the parties consenting and agreeing, a trial by jury was waived, and the trial was had before the court alone; and after hearing the evidence and the argument of counsel, the court being in doubt what decision ought to be made, took the same under ■ consideration, and now being fully advised in the premises, ■ the court finds the following facts and conclusions of law: “ 1. That plaintiff and defendant made the agreement .and contract evidenced by the following writings, at the ■dates therein respectively set out—that is to say, on the seventh day of October, 1890, the plaintiff A. W. Sefton, and plaintiff J. M. Siglin by said Sefton, his duly authorized agent, entered into a contract of which the following ;is a copy, to wit: “1 Portland, October 7,1890. “‘The Minnesota Type Foundry Company,by its agent, 'Frank E. Hall, agrees to sell to A. W. Sefton and J. M. s Siglin of Coos Bay, Oregon, a printing outfit comprising a . listed invoice of material at the following rates of discount : ■ on all type made by us, 32|-% off; on machinery, a net price; on all other material under the 25% column, 30%; ■ wood type and all other type from other foundries. The . above f. o. b. at St. Paul, except the O. S. Gordon press. -.Two-thirds with order; balance, when goods are invoiced. “‘A. W. Seeton, “ ‘ for self and Siglin. “ ‘F. E. Hall.’ “That on-the seventh day of November, 1890, the ■plaintiff, referring to said contract above set out, sent a ; list of machinery and material wanted under said agreement, which said order was in words and figures as follows, to wit: “‘Marshfield, Oregon, November 7,1890. “‘Minnesota Type Foundry Co., 72, 7J¡. and 76 East Fifth Street, St. Paul, Minn.—Gentlemen: Enclosed herewith find list of machinery and material wanted under agreement with your Mr. Frank E. Hall, dated at Portland, on the seventh ultimo; also check on New York for twelve hundred dollars, payable to your order in accordance with said agreement. As we desire to make first issue January 7, 1891, it is desirable that the material be here not later than December 10th, proximo, hence will ask you to ship at once and notify us of date of shipment. Mark goods Sun Publishing Co., Marshfield, Oregon, care of Coos Bay Coal and Navigation Co., San Francisco, Cal. All type, rules, leads, slugs, metal furniture, etc., are to be on the point system. None other will be accepted except the minion Clarendon points, which are to be of the old MacKellar, Smith & Jordan body. Of these we want about one pound, periods, commas, colons, semicolons, hyphens, apostrophes, exclamations, and interrogations, apportioned as like amount would be in putting up points (fonts). Have large font of the type but no points. Names used in list of material wanted are those used in several books and sheets selected from. As soon as possible have indicated where things were found not in your pony specimen book. . If there is any material difference as to cheapness in wood type made on end wood and holly, send holly type 15 ems and upwards; below that size end wood. If you are making any of the material ordered from other books than yours, substitute your make. The sheet of cuts has failed to come to hand. Make out your bill at list prices, segregating the items so that the several different discounts come together and put the total list price at foot of each; then total actual price with discount off on separate sheet. “ ‘ Trusting that you will be prompt in shipment as this is of vital importance to us, we are, yours, respectfully, “‘The Sun Publishing Company, “ ‘ care Siglin & Luse, “ ‘ Per A. W. Seeton, Business Manager.’ “Enclosed in said order as given above was the list of goods ordered therein, as set forth in the defendant’s answer, and not disputed in the pleadings, which order and list were duly received by the defendant. “2. That there was no other contract or agreement between the plaintiff and defendant other than that set out in finding No. 1, above. “ 3. That the defendant shipped the goods described in the list sent, which said order is set out in finding No. 1, except certain goods to be hereafter described in a subsequent finding, to Flanagan & Bennett, bankers, at Marsh-field, Oregon, together with an invoice of the goods so shipped, and the bills of lading thereof, and a draft for $580.59, which was claimed to be the balance of the purchase price for the goods so sent, and which draft was made payable to Flanagan & Bennett, or order, and was directed to the plaintiffs, and was drawn by the defendant. The shipment was made in several parts from November 25,1890, to December 8,1890, and defendant directed the said Flanagan & Bennett to deliver the said goods to plaintiff when they should pay said draft, and they were also directed to exhibit the invoices of said goods to plaintiff upon presentation of the said draft. “4. Flanagan & Bennett did on the thirtieth day of December, 1890, deliver to plaintiffs the said invoices of the goods so shipped to them, and presented the said draft, and offered to deliver the bills of lading of the said goods, so shipped to them, upon the payment of said draft; but the plaintiffs refused to pay the said draft or receive the said bills of lading or said goods, for the reason, as then stated by them to said Flanagan & Bennett, that the goods were not in all things the kind ordered, and were such as they did not want. “5. That the items in the list of goods ordered, as stated in a former finding, of 175 pounds of long primer No. 11, and of 150 pounds of brevier No. 13, were not filled or sent in the shipment of the goods sent, or at all, but that instead thereof the defendant sent in said shipment 176-| pounds of long primer and 151 pounds of brevier of a different face from that ordered in said order; that said order was made by a reference to a specimen book furnished by defendant to plaintiffs containing the samples of the type they sold, and were in said order designated by numbers appearing on said specimen book; that defendant wrote to plaintiff, which letter was received by plaintiffs before they received the invoices as aforesaid, to the effect that they could not fill the order as to the said long primer and brevier type, but that they substituted therefor a type of another style of face, which was preferable, and was being extensively used by other newspapers. “ 6. That in the printing business the face of type constitutes a material and essential part of the type according to the particular use it is to be put to, and the tastes and wishes of the printer who uses it, and a difference in the face of type is a material and essential difference. “7. That defendant did not mark the goods shipped by it to the Sun Publishing Company, or to Marshfield, Oregon, or to the care of the Coos Bay Coal & Navigation Company, San Francisco, Cal., but they were shipped only as set out in finding No. 3. “8. That the reasonable and the contract value and price of the goods ordered, is the sum of $1,780.59, of which the plaintiffs have paid the defendant the sum of twelve hundred dollars, and no more; that the reasonable and contract value and price of the goods ordered which were not sent is $169.87, and of the goods sent and not ordered and not received, $169.87. “9. That the plaintiff, before the commencement of this action, duly notified the defendant of its refusal to take or receive the said goods, or any of them, and duly demanded a return of the twelve hundred dollars paid defendant on said order, and that defendant has refused and still does refuse to pay the same, or any part thereof. “conclusions op law. “ 1. That the contract and order set out in the findings of fact are an entire and non-severable contract, and plaintiff was not obliged to accept and receive any part of the goods ordered unless defendant filled substantially the order as to all the goods ordered. It being not so filled, plaintiff was not obliged to accept the goods sent to Flanagan <fe Bennett. “ 2. Defendant not having complied with the conditions of the contract on its part, is not entitled to recover any part of the price or value therefor, the goods having been refused, nor to have plaintiff receive or pay for any of the goods shipped to Flanagan & Bennett. “3. The plaintiff is entitled to recover the sum of twelve hundred dollars from the defendant, with interest thereon from the first day of January, 1891, at the rate of eight per cent per annum. “It is, therefore, ordered and adjudged that plaintiff have and recover from the defendant the sum of twelve hundred dollars, with interest thereon from the first day of January, 1891, at the rate of eight per cent, to wit, the total sum of $1,253.33, and legal interest thereon from the entry of the judgment herein until paid, and for its costs to be taxed, and that the property hereinbefore attached be sold to satisfy this judgment and costs and accruing costs. “Martin L. Pipes, Judge.”