Before GOODRICH and HASTIE, Circuit Judges, and MILLER, District Judge.
This is an action on the part of a seller of goods to recover against the buyer for breach of contract. In the trial court each party, following the filing of a stipulation of facts, moved for summary judgment. The court granted the motion of the defendant. Plaintiff here says that it should have had the summary judgment or, at the worst, that the case should be remanded for trial on the facts.
The one point presented is both interesting and elusive. The seller is a Canadian corporation. It entered into an agreement with defendant buyers who do business as Keystone Wool Pullers in Philadelphia. By this contract Keystone agreed to purchase a quantity of lamb pelts at a stipulated price. Part of the quantity was delivered on board railroad cars at Toronto and shipped to Keystone in Philadelphia. On or about March 12, 1952, Swift advised Keystone of its readiness to deliver the remaining pelts to the buyer on board railroad cars in Toronto for shipment to Philadelphia. The parties have stipulated that on or about that day the government of the United States by its agency, the Bureau of Animal Industry, had issued stricter regulations for the importation of lamb pelts into the United States. The parties have stipulated that "pursuant to these regulations, the importation into the United States of these lamb pelts by Keystone was prevented." They have also stipulated that for the reasons just stated Keystone then and thereafter refused to accept delivery of the pelts and the loading and shipment of the car did not occur.
From an inspection of the contract made between the parties it appears that the seller agreed to sell the pelts:
"all at $3.80 each U.S. Funds F.O.B. Toronto."
Below this an approximate time was stipulated for shipment and then there were shipping directions in the following form:
Via: Buffalo-Penna. R.R. to
Freight Sta. Penna. R. R. Delivery."
Following this appears the terms and method of payment.
Two additional conditions of sale should be stated. There was a provision that neither party is to be liable for "orders or acts of any government or governmental agency ..." And there was a provision that "when pelts are sold F.O.B. seller's plant title and risk of loss shall pass to buyer when product is loaded on cars at seller's plant."
The one question in this case is the legal effect of this agreement between the parties. If the seller's obligation was performed when it delivered, or offered to deliver, the pelts to the railroad company in Toronto, we think it is entitled to recovery. If the seller did fulfill its obligation, when it did so deliver, of course it is clear that when it failed to load the pelts because the buyer had signified his refusal to accept them, the seller may assert the same rights as though he had loaded them. A party is not obligated to do the vain thing of performing, assuming that he is ready to perform, when the other party has given notice of refusal to accept performance. 3 Williston on Sales, § 586 (Rev. ed., 1948); Restatement, Contracts, §§ 280, 306; Leonard Seed Co. v. Lustig Burgerhoff Co., 1923, 81 Pa.Super. 499. See also Uniform Commercial Code, § 2-610(c); Pa.Stat.Ann. tit. 12A, § 2-610(c) (1954).
The argument for the buyer must rest on the fact that the shipping directions in the contract showed that what the parties had in mind was such kind of performance by the seller as would start the goods to the buyer in Philadelphia. This, coupled with the stipulation that, in consequence of the stiffening of federal regulations, "the importation into the United States of these lamb pelts by Keystone was prevented," forms the basis for the ...