Eichelbaum v. Bishop
Eichelbaum v. Bishop
Opinion of the Court
Opinion by
The plaintiff sold to the defendant a carload of scrap iron on December 20, 1918. We are convinced after a careful reading of the testimony that the plaintiffs duty to ship the iron began on December 31, 1918. It was then that the permit was received and the amount to be shipped was definitely settled. On January 7, 1919, the defendant cancelled the order.. The plaintiff insisted that the contract must be kept. The question ’therefore is, “Was there an unreasonable delay in shipping the scrap so as to relieve the defendant from accepting it, and permitting him to cancel the contract?” The written contract between the parties calls for the furnishing
The judge who tried the case without a jury concluded that under the circumstances of this case the plaintiff was not in default, and in this there was no error. There was testimony that it took four to six days to obtain a car after the permit arrived, and that the plaintiff began to load the car in question for shipment at the earliest possible moment. Some of these facts appear from the correspondence of the parties. The probative force of the letters is small, but as they were received without objection and apparently both parties were willing to recognize the statements contained therein, it is now too late to object to what may be called self-serving declarations contained therein.
We need give but passing notice to the assertion of the defendant that the plaintiff was required to give the car numbers. In one of the telegrams plaintiff said, “Wire shipping instructions at once and we will advise you car numbers.” The written contract, however, contains no such requirement. The failure to give the numbers did not contribute to the delay in the shipment, and it is very evident that the necessity of the defendants having the car numbers would not arise until the car reached its destination, and in any event until it was started on its journey.
We think tbe case was properly decided, and that there was sufficient evidence to sustain tbe judgment of tbe trial judge.
Tbe assignments of error are overruled and tbe judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.