Ontario Deciduous Fruit Growers' Association v. Cutting Fruit Packing Company

66 P. 28 (1901)

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Nature of the Case

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Facts

P and D entered into a contract to sell and buy peaches from a specific orchard. The contract showed the grades and varieties of peaches to be sold, the minimum and maximum quantities of each, and the price per ton, and then the contract proceeds as follows: 'Deliveries shall be made between the twentieth day of July and the first day of September 1898, and shall conform as far as possible to the mutual convenience of buyer and seller.' Payments were to be made: 'One half the delivery value within ten days of the date of full delivery, and one half (the balance) of delivery value within thirty days of the date of final delivery, or the execution of all the terms of this contract by the seller.' P was unable to deliver everything due to a severe drought. D offered to accept 'Salway' peaches in satisfaction of the contract, but P failed to comply with this offer. 'Salway' peaches were not mentioned in the contract. P sued D for payment for the peaches delivered. P got the verdict as the court held that full performance was impossible and D was ordered to pay for the peaches delivered. D appealed.