MCMILLAN and another, Appellants, v. FOX and another, Respondents., 90 Wis. 173

Summary

The sellers, by written contract, sold to the buyers a quantity of pine lumber in piles and sheds in the yard of the sellers at a uniform price per 1000 feet loaded on cars at the yard. By the terms of the contract, the title to the lumber was to remain in the sellers until loaded on cars, and such loading was to be deemed a delivery. Shipments began in February. In April, an accidental fire destroyed a shed and its contents of dry lumber, which was a part of the lumber to be sold. The buyers claimed that by the failure to deliver the lumber that was burned, the sellers could not recover on the contract. The buyers counterclaimed for the difference between the actual value of the lumber burned and the contract price thereof. The court held that the executory contract contemplated a delivery from time to time and was manifestly severable. In such case, the parties were excused from carrying out the contract in case, before breach, performance became impossible from the destruction of ...