Wheelock v. Pacific Pneumatic Gas Co.

Citations

• 51 Cal. 223

Syllabus

<p>Waived of Damages.—If the plaintiff contracts to sell and put up gasoline for shipment in first-class cases, and the defendant contracts to pay for it on the arrival of the bills of lading in due course of mail, and several shipments are made in defective cases, for which payment is made before the vessels arrive, and the defendant receives the gasoline when it does arrive, and with a knowledge that the cases were defective, uses it, he does not thereby waive his claim for damages.</p> <p>Independent Covenants.—A covenant by one party to sell and ship goods in first-class cases, and by the other party to pay foi- the goods on the arrival of the bills of lading in due course of mail, are independent covenants, to be performed at different times.</p> <p>Waived of Claim fob Damages.—Letters containing an express waiver of a claim for damages for the violation of a covenant to ship goods in good cases, are not binding if written without consideration.</p> <p>Counter-Claim.—A claim for damages for a violation of a covenant to ship goods in good cases maybe set-off byway of counter-claim, in an action brought to recover the price of other goods sold to the defendant.</p>