BREACH OF CONTRACTS OF SALE 193 



passed to the purchaser at the time it was loaded on barges 

 at the mill in Canada. l 



137. General Principles Applied in Actions for 

 Breach of Contracts for Sale of Timber Products. A 

 refusal of a purchaser to accept all of a shipment of lumber 

 as not meeting the requirements of the contract as to quality, 

 and a return by the seller of a check for the lumber which the 

 purchaser was willing to take, with a request that the pur- 

 chaser have the lumber reloaded at the seller's expense, was 

 held to effect a rescission of the original contract, and the 

 vendor was required to pay the cost of the reloading. 2 In 

 an action for the balance due on a contract for the sale of 

 lumber, a counter-claim for damages because the lumber was 

 not furnished in the si zes and at the time required by the con- 

 tract has been allowed, including the loss due to wages paid 

 men kept idle because of such failure. 3 It has been held 

 that a purchaser of logs may deduct from the purchase price 

 the amount which has been paid as stumpage because of 

 learning subsequent to the purchase that the logs were cut 

 in trespass on government land, 4 and also that a purchaser 

 may refuse payment for the products purchased until liens 

 are released or he is given security against the lien claims. 5 



The buyer may also deduct from the purchase price other 

 charges connected with the transfer of the property, such as 

 for scaling and inspection as ordinarily contemplated in 

 such sales. 6 The measure of damages for a failure to de- 

 liver lumber in the quantity or of the quality agreed upon, 7 



1. Donovan v. Standard Oil .Co. (N. Y.) 49 N. E. 678. (The court saying the nature 



of the transaction and the custom of business as well as the letter of the con- 

 tract must be considered.) 



2. Wyckoff v. Swann, 62 N. Y. Suppl. 139. 



3. Clark v. Koeraer (Ky.) 61 S. W. 30. 



4. Parish v. McPhee, 102 Wis. 241, 78 N. W. 421. 



5. Saxton v. Krein, 107 Mich. 62, 64 N. W. 868. 



6. Mcllquhan v. Barber, 83 Wis. 500, 53 N. W. 502. See also Yellow Poplar Lbr. 



Co. v. Stephens, 69 8. W. 715, 24 Ky. L. Rep. 621; French v. Asher Lbr. Co., 

 41 8. W. 261, 46 8. W. 701, 20 Ky. L. Rep. 380; Fish v. Crawford Mfg. Co. 

 (Mich.) 79 N. W. 793; Wemple v. Stewart. 22 Barb. (N. Y.) 154; Aitcheson v. 

 Cook, 37 U. C. Q. B. 490; Reid v. Robertson. 25 U. C. C. P. 568. 



7. Barr v. Henderson, (La.) 30 So. 158; West v. Bechtel (Mich.) 84 N. W. 69; Hair 



& Ridgeway v. Wheelihan (Minn.) 84 N. W. 638; Saxe v. Penokee Lbr. Co. 

 (N. Y.) 54 N. E. 14; Hamilton v. Kirby (Pa.) 49 Atl. 214; Florida Athletic Club 

 v. Hope Lbr. Co. (Tex. Civ. App.) 44 8. W. 10. But see: Soutier v. Keller- 

 man, 18 Mo. 509 (1853). (By custom packs of shingles of certain size to be 

 accepted in lieu of actual count.) 



