Story Case

The George Orlove Company of Hartford, Connecticut, ordered 10,000 barrels of flour of the B. A. Eckhart Milling Company of Chicago, Illinois. The price agreed upon was $4.90 per barrel. By some mistake, the B. A. Eckhart Milling Company sent 10,110 barrels, but drew upon the Orlove company for only 10,000. The price of flour had meanwhile declined fifty cents a barrel, and the George Orlove Company, anxious to escape its obligation, returned the flour with the explanation that it was not obligated to accept more than 10,000 barrels, and that, since 10,110 were sent, it refused the whole. Can B. A. Eckhart recover in a subsequent suit against the George Orlove Company?

Ruling Court Case. John Bommell Vs. Wingate, Volume 103 Massachusetts Reports, Page 327

Bommell, who lived in New York, wrote to Wingate, of Boston, offering to sell coal. He stated that he had a vessel of 375 tons which he could load on Monday. Wingate telegraphed back, "Ship that cargo 375 tons immediately." Rommell did not begin to load until nine days afterwards, and then shipped a cargo of 392 tons. Wingate refused to accept it, and this action was brought for damages.

Wingate contended that he was under no obligations to accept a larger amount of coal than he bargained for.

Mr. Justice Morton said: "The plaintiff writes: 'We have a vessel of 375 tons, which we can load for Boston, at $3 freight, load on Monday.' The reply of the defendant is, 'ship that cargo 375 tons immediately.' This bound the defendant to receive a cargo of 375 tons to be loaded at once. It did not bind him to take a larger cargo, or one which could not be shipped substantially, as speedily as proposed by the plaintiff in his letter." Judgment was given for Wingate.

Ruling Law. Story Case Answer

Unless otherwise provided in the contract of sale, it is usually incumbent upon the seller to deliver the things sold, although, as we have seen, delivery is not necessary to pass title, as between the parties. The seller must deliver, substantially, as much as the buyer agreed to buy. If substantially less is delivered, the buyer is under no obligation to accept it. Likewise, he is under no obligation to accept more than he agreed to buy, if this requires him to pay more.

In the Story Case, the George Orlove Company cannot escape liability on its agreement. It received a few more barrels than the number ordered, but in substance, only the amount ordered; and such a pretext is too transparent to deceive the court, inasmuch as no additional charge was made for the extra barrels. There was no effort on the part of the Eckhart Milling Company to sell the buyer more flour than was ordered. Charges were made for only 10,000 barrels. The George Orlove Company could have refused to accept the additional barrels, but the rule will not permit it to refuse the entire shipment.