Seligman v. Beecher

Citations

• 36 Pa. Super. 475
• 1908 Pa. Super. LEXIS 192

Syllabus

<p>Contract — Sale—Monthly deliveries — Failure to fill orders — Failure to give orders — Delay in filling orders — Damages.</p> <p>Where a contract is to deliver 240 carloads of timber during a year in quantities of twenty carloads a month to be shipped upon orders given by the purchaser to the seller, to places designated in the orders, the purchaser is the actor in the transaction, and if he fails to give orders for a number of carloads, it is, prima facie, not necessary for the seller in order to save himself from default, to tender such carloads at the purchaser’s residence or place of business. If, however, the seller expressly refuses to fill orders, which under the contract he was bound to fill, the purchaser is not under obligation to go through the idle form of giving orders in order to hold the seller for a breach of his contract to deliver 240 carloads during the year.</p> <p>If without valid excuse and in spite of the purchaser's repeated remonstrances, the seller fails to fill orders that are given, this might, under some circumstances, justify the purchaser in withholding further orders, and still hold the plaintiff for a breach of the contract; but in determining whether'the seller will be liable on that ground, it is necessary to consider what the purchaser’s conduct had been in giving and canceling orders. If in that particular there has been lax performance on his part, either in giving the full number of monthly orders, or in canceling without proper grounds, orders already given, he is not in a position to say that the seller’s delay in filling, or even failure to fill, some of the orders that he gave was a breach of the contract, which, without more entitled him to damages for the nondelivery of the carloads for which he gave no orders. If the evidence relating to the purchaser’s conduct is conflicting, the case is for the jury.</p> <p>Where a contract is to deliver a certain number of carloads of lumber during a year on monthly deliveries, the