Peck Brothers & Co. v. L. F. Bannon Plumbing, Heating & Contracting Co.

gave an order for the balance thereof, and stated: “ If all fixtures are not ready you can send us the fixtures for the basement floor first.” On January 26, 1915, defendant asked for advises by return mail as to date of shipment. On January 27, 1915, plaintiff suggested that it would like to have a guaranty on the account, or would make a liberal discount if defendant would accept the goods on sight draft with bill of lading attached. On February first the plaintiff wrote informing defendant that a certain account had with it was past due, and asking for a remittance. On February third the defendant inquired what discount for cash the plaintiff would give. On February fourth plaintiff again wrote concerning the past due account. On February sixth plaintiff wrote that if the defendant would-accept the goods on sight draft it would allow five per cent discount. On February eighth defendant wrote asking plaintiff to omit certain items from the shipments. On February twelfth defendant wrote asking if the plaintiff had not made a mistake in allowing a credit of sixty-eight cents each for floor drains when the defendant was obliged to pay six dollars and fifty cents therefor. On February twentieth the defendant wrote plaintiff again in reference to floor drains, and stated in reference to the- order: “Please forward at once, with bill of lading attached.” This would seem to have been an acceptance of the offer of a discount for cash made by the plaintiff, for “ bill of lading attached ” can mean nothing else than bill of lading attached to sight draft. In this letter for the first time the defendant indicates that its need of the shipment is immediate. Letters of February twenty-fourth, March second, March third, March fifth and March eighth interchanged between the parties refer exclusively to the very small difference between them in relation to the credit for floor drains. On March 11, 1915, defendant wrote the plaintiff canceling the order for fixtures, and has ever since refused to accept same. We think the trial judge was in error in dismissing the complaint on the ground that the plaintiff unreasonably delayed shipment. The parties did not come to terms on the matter of credits until February twentieth, when the defendant agreed to accept the shipment on sight draft with bill of lading attached. Only eighteen days elapsed

thereafter before the letter of cancellation., during which time the parties were in controversy over the amount of a credit which would affect the amount of plaintiff’s account. It was necessary that this be cleared up in order that the plaintiff might know what figures to insert in the sight draft which was to go along with the bill of lading. There is nothing to indicate unreadiness or unwillingness on the part of the plaintiff to make shipment. Moreover, it is quite apparent that the reason for cancellation was not delay in shipment but the refusal of an architect to accept the fixtures of the plaintiff in the building which the defendant was constructing under his supervision. We think that there was no unreasonable delay on the part of the plaintiff, and that the complaint should not have been dismissed.

The judgment should be reversed.

All concurred.

Judgment reversed, on law and facts, and new trial granted, with cost to appellant to abide event. The court disapproves of the first, third, fourth, fifth and sixth findings of fact.-