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Alaska Pac. Trading Co. v. Eagon Forest Prods. - 85 Wash. App. 354, 933 P.2d 417 (1997)

Rule:

An intent to repudiate may be expressly asserted or circumstantially manifested by conduct. However communicated, a court will not infer repudiation from doubtful and indefinite statements that performance may or may not take place. Rather, the anticipatory breach must be a clear and positive statement or action that expresses an intention not to perform the contract. 

Facts:

Appellant plaintiff Alaska Pacific Trading Company (ALPAC) and respondent defendant Eagon Forest Products, Inc. (Eagon) contracted to sell and buy raw logs. After months of communications between the parties, the delivery date passed with no shipment. Eagon canceled the contract, alleging that ALPAC had breached. ALPAC brought an action for breach of contract. The trial court found that ALPAC breached the contract by failing to timely deliver the logs and that there was no modification of the delivery date and Eagon did not repudiate. It granted Eagon's motion for summary judgment finding that the seller breached the contract by failing to timely deliver the logs. On appeal, ALPAC contended that failure to timely deliver the goods is not a material breach and that the parties modified the delivery date. Alternately, it argued that Eagon breached the contract by failing to provide adequate assurances or repudiating the contract. 

Issue:

Can failure to timely deliver goods be considered a material breach of contract?

Answer:

Yes

Conclusion:

The Court of Appeals of Washington affirmed the trial court's decision because ALPAC's failure to timely deliver goods was a material breach and the parties did not modify the delivery date. The Court found that under the "perfect tender" rule, the seller breached its duty under the contract and released the purchaser from its duty to accept the logs. The seller did not dispute that the contract specified a date for shipment or that the logs were not shipped by that date. The Court further found that even if the parties did waive the original delivery date, the seller still had a duty to deliver the logs within a reasonable time. Its failure to ship the logs for an additional 20 days, while the price of logs continued to drop, was unreasonable and a breach. Further, the Court observed that ALPAC did not request assurances, and Eagon did not repudiate the contract.

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