R. J. Menz Lumber Co. v. E. J. McNeeley & Co.

Citations

• 58 Wash. 223
• 108 P. 621
• 1910 Wash. LEXIS 923

Syllabus

<p>Sales—Delivery—“F. O. B.” An accepted order for shingles “f. o. b. cars” means that the seller shall do all that is necessary to load the cars, including the securing of the cars, especially in view of the universal usage in this state.</p> <p>Contracts—Writing—Construction—Province op Court. Where an order and acceptance is in writing and not ambiguous, it is for the court to construe it, and it is error to instruct the jury that they are to determine what the contract was.</p> <p>Contracts—Construction—Printed Headings. Printed matter on letter heads not referred to either in an order for the sale of goods or in the acceptance is not a part of the contract.</p> <p>Custom and Usage—Evidence—To Vary Writing—Sales. Parol evidence of a general or special custom in the shingle trade that accepted orders were contingent upon the exigencies of transportation and expired where delivery was unavoidably delayed for a reasonable time, is inadmissible to vary or control the terms of an unconditional written acceptance, as the same would be repugnant to the contract.</p> <p>Sales—Action for Breach—Defenses—Failure to Deliver—Excuses. In an action to recover for breach of a contract to deliver shingles, no specific date for delivery having been agreed upon, the defense that washouts, mountain snows and slides prevented a delivery within a reasonable time is unavailable, where the plaintiff was not complaining of a failure to deliver while such conditions existed.</p> <p>Same—Damages—Assessment. Upon breach of a contract to deliver carload lots, the size of the car not being specified, damages are assessable on the basis of an average sized car.</p> <p>Same—Breach—Measure op Damages. The measure of the buyer’s damages for breach of a contract for the sale of shingles, no definite time for delivery being fixed, is the difference between the contract price and the value of the shingles at the date of the demand and refusal to perform the contract.</p> <p>Chadwick, J., dissents.