Question.—We took an order from a customer for a carload of lumber to be shipped not later than September 15th. The car was shipped within the specified time but did not reach destination as promptly as it should, and our customer claims that he has been damaged to such an extent that he refuses to take in the car, saying it arrived too late for his use. The lumber is exactly in accordance with the order and is a special worked car. We will be put to some expense in disposing of this elsewhere and will probably have to sell it at a lower price. What method should we pursue?

Reply: There are three courses:

First: The shipper may store the lumber for the buyer and sue him for the invoice price.

Second: He may retain the property as his own and recover the difference between the market price at the time and place of delivery and the contract price.

Third: He may sell the lumber, acting as the agent for the purchaser and recover the difference between the contract and the price of resale.

This last course is usually considered best because it gives the seller the use of the money realized on the resale. Of course in reselling the lumber care must be taken to obtain the best possible price, and in the event of the resale the seller is entitled to recovery from the purchaser of all the costs which he was obliged to lay out in bringing to pass a sale of the property in question.

Opinion No. 78.