Soper v. Creighton , 93 Me. 564 ( 1900 )

Haskell, J.

Plaintiffs are merchants in Boston; defendants traders in Thomaston. May 4th O’Brien, a salesman of plaintiffs, sold defendants a car of feed, to be shipped at once. May 5th plaintiffs wrote defendants, “ We have this day sold you one car Blish Milling Co. at $17.75 mixed feed 100 lbs. B. Pts. To be shipped prompt.” May 26th defendants wrote plaintiffs, “We bought a car of feed to come right along. That was some four weeks ago, but it is not here yet. We have been looking for it all this time and its not coming has hurt our busiuess very much. If it is not near here shall have to give it up and order elsewhere.” Again June 4 th defendants wrote plaintiffs, “We bought a car of feed of you, through your Mr. O’Brien, May 5th, to be delivered at once. Now it has not arrived yet, and we have lost the sale of a car of feed, and it is so late in the season that we shall not want it. You will please cancel the order as we will not be able to receive it.”

The contract contemplated the prompt delivery by plaintiffs on board carrier, at Boston or vicinity, merchandise consigned to defendants. Upon such delivery the title to the goods would have passed to defendants. Without such delivery the title would not pass, except by defendants’ consent. Such delivery was never made. Plaintiffs never shipped the merchandise from Boston or vicinity, where prompt delivery would insure prompt receipt of the goods by the purchasers, as contemplated by the contract of sale. The delay was unreasonable. The defendants might well cancel their order, or, which is the same thing, refuse to receive the goods not shipped for a month after they should have been. Plaintiffs had no right to sell defendants goods to be shipped promptly, presumably from their warehouse or store in Boston, and compel defendants to await their arrival from the west, with delay of perhaps a month in transit.

Had plaintiffs sold the goods to be delivered in Thomaston, they might have shipped them from the four corners of the universe, had they seasonably delivered them, and they would have become the defendants’ goods.

The title to the goods did not pass to defendants, nor were the goods seasonably shipped under the contract of sale so as to enable plaintiffs to have damages. They did not mind the contract themselves and defendants need not. Rhoades v. Ootton, 90 Maine, 453.

Judgment for defendants.