Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1915-04-21
Supreme G urt
FROM GRAND FORKS COUNTY,.

:
Hart.Parr Company, a corporation,
Plaintiff and Appellant, gS'
Frank Finley, Defendant and Res:
pendent.
syllabus: Before time fixed for
delivery defendant gave notice Of can.
collation. of his written and excepted
order of plaintiff for traction en-
CINE. Plaintiff refused to permit can,
CO lation, insisting upon performance.
with defendant repudiating the, con.s
tract and declaring that he would not
accept or; pay for the machine. Plain:
TIL thereafter rendered it, and upon
defendants refusal to accept It. left
the engine at defendants farm against
his protests and without his consent.
Plaintiff claims title passed as on q
delivery and sues for the purchase
price, $1,000, and. freight $1O4 addi.
tionad. Held:
Q) The doctrine that there can be
no anticipatory breach of an execu.
tory contract of purchase and sale,
adopted in Stanford VS.. fMcGiil, 6 N.
D. $50, is overruled. and the over.
whelming weight Of authority, both
English and American, followed.
(2) The unconditional notice of
cancellation, though not acquiesced
in by plaintiff, operated to relieve de.
PENDANT from damages resulting from
the acts done by plaintiff in perfarm-.
ance of the icontract subsequent to mo-.
tice of cancellation, and relieved de-
fendant from, freight charges incurred
notice & ft cancellation, and relieved
defendant; from freight CHARGES In.
CURED BY plaintiff after such notice,
OF, cancellation. II III ss
sil3) Though plaintiff J could keep
the contract alive and insist upon "a
performance up to the time for deliv-
cry and could incur freight expenses
in so doing after notice of cancella.
ton, its right to recover for 1t. de-
ponds upon defendants. subsequent
withdrawal of his reputation and
subsequent performance.
az The mourning Of the freight
charge after notice Of cancellation re-.
ceived is an enhancement by plaintiff
of its own damages and not recover
able, unless suit can be maintained
for the purchase price.
w OAlC00 SAO COAtl0Sk 0&YWt0SyW
the contrary, delivery and acceptance,
of properly and vesting Of title there
Under and payment Of the purchase
price therefor are, concurrent acts;
and until delivery and. acceptance
title does not vest, and the purchase
price payable only on the vesting Of
title is not recoverable in a suit for
the purchase price. eS sasi9
co. To constitute asvalid delivery
on sale Of personal property there
must be an acceptance Of it by the
purchaser or his agent. Constructive
delivery may be an exception.
Cd In the face of a refusal to re.
ceive delivery and the property in per.
nance of contract of purchase and
sale, the purchaser standing on re-.
pudiation Of it-declared while the con-,
tract was wholly executory with re.
pudiation not subsequently waived or
withdrawn, title cannot be cast upon
the purchaser by operation Of law.
60 The attempted. delivery. did
not vest title and suit 70. the purchase
price cannot be maintained nor can
the freight charges incurred after no.
tice OF cancellation be recovered.
90 The contract cannot be con.
.strued as authorizing recovery indie.
pendent of delivery of property or
vesting of title in defendant, but in
stead is a contract Of purchase end
sale with payment conditioned upon
the passing of title.
From judgment of the. district
court of Grand Forks County, Colley,
j., dismissing this action, plaintiff ap-
peals.
Affirmed. Opinion of the Court by
Goss, J.
George A. Bangs and George K.
Robbins, Of Grand Forks, Attorneys
for Plaintiff and Appellant.
o. B. Burtness, OF Grand Forks, At
torney for Defendant and Respondent.