Blenner v. Vim Motor Truck Co.

117 S.E. 834, 136 Va. 189, 1923 Va. LEXIS 78

• Court: Supreme Court of Virginia
• Decided: June 14, 1923
• Status: Published

Opinion

Sims, J.,

after making the foregoing statement delivered the following opinion of the court:

The decision of the case turns upon the decision of the following question presented by the assignments of error, namely:

1. Is the position of the defendant company, that under the contract of sale in suit, as shown by the evidence without conflict therein, it had the right to require payment or tender of the purchase price for the trucks in advance of the placing of the trucks in the hands of the carrier for shipment to the plaintiff at Richmond, Virginia, and of delivery of bill of lading therefor to the plaintiff by the defendant company, untenable as a matter of law? And did the trial court err in giving instruction No. 1, stating the affirmative, and in refusing instructions “C,” “D” and “E,” stating the negative of that proposition?

The question must be answered in the affirmative.

In 3 Elliott on Contracts, sections 1968 and 5042, the following is said:

“Sec. 1968.—Conditional tender—Mutual and Concurrent acts or promises. * * Where the contract does not call for the payment of money as an ordinary debt, or the performance required is not independent of any precedent or concurrent act of the other party, but the case is one of mutual and concurrent promises, the word ‘tender' does not mean the same kind of offer as when used with reference to the payment or offer to pay any ordinary debt due in money, in cases where the money is offered to a creditor entitled to receive it and nothing further remains to be done, the transaction thereby being completed and ended; but it then means a readiness and willingness, accompanied by an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such purpose. Such readiness, ability and notice are sufficient evidence of, and indeed constitute and imply, an offer or tender in the sense in which those terms are used in reference to agreements generally. It is not an absolute and unconditional offer to do or transfer anything at all events, but it is in its nature conditional only, and dependent on, and to be performed only in ease of the readiness of the other party to perform his part of the agreement.” Citing Smith v. Lewis, 26 Conn. 110; Taylor v. Mathews, 53 Fla. 776, 44 So. 146; Cook v. Doggett, 2 Allen (Mass.) 439; Irvin v. Gregory, 13 Gray (Mass.) 215; Browning v. Owen County, 44 Ind. 11; Lynch v. Jennings, 43 Ind. 276. See also to the same effect Clark v. Weis, 87 Ill. 438, 29 Am. Rep. 60; Bussard v. Hilder, 42 Or. at p. 504, 71 Pac. 642; Baldwin v. Bank, 17 Col. App., at p. 13, 67 Pac. 179; Summers v. Hedenberg, 198 Ill. App. 460; 2 Benjamin on Sales, sec. 897, notes 8 and 23, and cases there cited; Merton v. Lamb, 7 T. R. 125; Rawson v. Johnson, 1 East 203; Waterhouse v. Skinner, 2 Bos. & P. 447; Ferry v. Williams, 8 Taunt. 62; Norwood v. Read, 1 Plowd. 180; Manistee Lumber Co. v. Union Bank, 143 Ill. 490, 32 N. E. 449; Comstock v. Lager, 78 Mo. App. 390; Mount v. Lyon, 49 N. Y. 552.

“Sec. 5042. Place of delivery.—The question as to the place of delivery and as to whether it is for the buyer to take possession or for the seller to send the goods to the buyer may be expressly determined by the contract between the parties, or the agreement as to this may be implied.” (Citing Devins v. Edwards, 101 Ill. 138; Van Valkenburgh v. Gregg, 45 Neb. 654, 63 N. W. 949; Field v. Runk, 22 N. J. L. 525; McLaughlin v. Marston, 78 Wis. 670, 47 N. W. 1058.) “When no place of delivery is specified in the contract, the general rule is that the goods are to be delivered at the place where they are known to be at the time of the contract, which is usually the seller’s place of business, or, in case of goods to be manufactured, the place of manufacture. But if the seller has no place of business then his residence may be the proper place, or some place other than either may be deemed or inferred to have been contemplated-, by reason of the circumstances, such as the nature of the article, usage or previous course of dealing between the parties. * *”

The following authorities are relied on in the brief and in oral argument for the defendant company, namely: Burks Pl. & Pr. p. 371, et seq., Chap, xxvii, Tender; Norfolk, etc., R. Co. v. Mills, 91 Va. 613, 22 S. E. 556; Keffer v. Grayson, 76 Va. 517, 44 Am. Rep. 171; Poague v. Greenlee, 22 Gratt. (63 Va.) 724; Shank v. Groff, 45 W. Va. 543, 32 S. E. 248; Benj. on Sales, p. 920, and note; 77 Am. Dec., note, pp. 468-479; Beauchamp v. Archer, 58 Cal. 431, 41 Am. Rep. 266; Allen v. Hartfield, 76 Ill. 358; Packer v. Button, 35 Vt. 188; 3 Elliott on Contracts, secs. 1959, 5042; and 35 Cyc. 172. We deem it sufficient to say that we have carefully examined all of these authorities; that we find that they do not deal with the rights of parties where the contract contains mutual and concurrent promises, but with such rights where the contract calls for the payment of money as an ordinary debt, and where nothing further remains to be done; or where the performance required is independent of any precedent or concurrent act of the other party; or where the plaintiff made no offer to perform the contract on his part, in the only cases dealt with in which the contract contained mutual and concurrent promises. And we have found nothing in such authorities contrary to what we have said above.

No place of delivery was specified in the contract of sale in the case in judgment. Hence, in accordance with the authorities on the subject the contract place of delivery was fixed, as an original proposition, by the prior course of dealing between the parties. By that course of dealing, as shown by the evidence without conflict, Richmond, Virginia, was the contract place of delivery. By the concluding correspondence between the parties, however, Philadelphia was, by mutual assent of the parties, fixed upon as the place of delivery.

As to the terms of payment upon which the delivery should have been made, the general sales eon-tract provided that the balance of the purchase price other than the $100 deposit made upon the execution of that contract, should be paid by the plaintiff either upon his receiving “sight draft attached to the transportation company’s bill of lading, or by cash before shipment of the ears, as the party of the first part” (the defendant company) “may elect.” The right of election thereby given, by its terms, applied to the purchase price of all of the ears sold under such contract, and not to the individual shipments, so that there was the right of but one election thereby given the defendant company, which election, when once made, governed the terms of payments for all the ears sold under the contract. The evidence shows, without conflict, that by the unbroken course of dealing between the parties under the contract prior to the giving and acceptance of the orders for the motor truck transaction in suit, the defendant company elected that the .terms of payment by the plaintiff of the balance aforesaid (which by the course of dealing was modified to mean the whole factory price of the cars), should be required to be cash upon the receipt by the plaintiff of bill of lading therefor, showing shipment to him at Richmond, Virginia, and upon the arrival of the cars at that place. The place of delivery having been changed by mutual assent of the parties, as aforesaid, the contract of sale shown by the evidence, as aforesaid, provided that payments of the factory price of the motor trucks in question by the plaintiff upon the delivery to him, or the bank as his agent, at Philadelphia of bill of lading showing shipments of the trucks to him at Richmond. Hence, the defendant company having refused to deliver such bill of lading, although the plaintiff offered and was ready and able to make such payment contemporaneously with the delivery to him of such bill of lading, it is plain that the defendant company, under the unbroken current of authority on the subject, had no right to demand payment of the purchase price of the trucks in advance of the putting of the trucks in the hands of the carrier for shipment and of the delivery of the bill of lading, and by its refusal to so ship the trucks and deliver the bill of lading the defendant company breached the contract and rendered itself liable in damages to the plaintiff.

It is urged in argument for the defendant company that the condition mentioned in the letter of that company of March 23, 1917, namely: “It is understood and made a part of this agreement that title of ownership of car or cars, as described herewith, does not pass to the undersigned” (the plaintiff) “until final cash payment is made”—gave the right to the defendant company to demand the payment of the purchase price in advance of putting the trucks in the hands of the carrier for shipment, and of the delivery of the bill of lading to the plaintiff. In the first place, it appears from the evidence that while that condition is embraced in some of the orders given by the plaintiff for cars prior to the orders for the trucks in question, it was not embraced in those orders or referred to in the letters of the defendant company accepting those orders; nor was it embraced in the general agency contract. However, if. it had been embraced in those orders or in that contract, or were regarded as embraced in the contract of sale of the trucks by inference from the course of dealing between the parties, it would be immaterial. It is elementary that, in sales of personalty, the passing of title, the delivery of possession, and the terms of payment, are not dependent upon each other. They are all matters which may be regulated by contract, independently of each other. As we have seen, in the instant case, the contract of sale, in regulating the terms of payment and the delivery of possession, contained the mutual and concurrent promises aforesaid, in accordance with which the defendant company did not have the right to demand the payment of the purchase price in advance of the putting of the trucks in the hands of the carrier for shipment and of the delivery of the bill of lading to the plaintiff.

It is further urged in the brief for the defendant company that the damages claimed by the plaintiff for loss of profits is ‘‘prospective and conjectural and cannot be allowed.” No authority is cited to sustain this position. Upon the uncontroverted facts in the instant case, the reverse of this contention is so well settled, and especially by the decisions of this court, that we deem it sufficient to say that there is no merit in this position.

The verdict and judgment under review must, therefore, be set aside and reversed; and being of opinion that the facts before us are such as to enable us to thereby attain the ends of justice, we shall, under the statute (section 6363 of the Code), render final judgment for the plaintiff for the sum of $1,550 damages, with interest thereon from March 1, 1917, until paid,' and costs.

Reversed and final judgment for plaintiff.