Williamsburgh Stopper Co. v. Bickart

Curtis, J. This action was begun in November, 1923, after the refusal of the defendant to pay for the crowns delivered during August, September and October, 1923, and after the refusal of the plaintiff to continue to make shipments after defendant’s refusal to pay, made in accordance with the provisions of the contract to the effect that the buyer’s failure to make *678 payments according to the terms of the contract relieves the seller from any obligation to continue ship-, ments. No question arises as to the validity of this conduct of the plaintiff. The jury rendered a verdict for the plaintiff to recover $8,410.89; the defendant moved that this verdict be set aside as contrary to the evidence. This motion the court denied. The questions arising upon the appeal relate to the denial of the motion to set aside the verdict, to the charge as made, and to the refusal to charge as requested. As appears from the record and the brief of the defendant, he never personally received delivery of any of the crowns called for by the contract, but they were in each instance shipped and delivered pursuant to the defendant’s instructions, direct to the defendant’s customers, who were located in various parts of the United States. The defendant thus never had an opportunity personally to inspect the crowns when delivered to his customers, and they accepted and used the crowns without his inspection, and during August, September and October, 1923, the plaintiff sold to the defendant and delivered to his customers various consignments of crowns, the contract purchase price of which was $7,476.35; these crowns were accepted by the defendant’s customers and used as far as possible, and they paid the defendant for all of the crowns with the exception of eight shipments amounting to $568.50. These customers, he offered evidence to prove, refused to pay the defendant for the eight shipments because of the poor quality of the crowns and because of delayed deliveries. The defendant refused to pay the plaintiff for the crowns sold and delivered to his customers during August, September and October, 1923, amounting, at the purchase price, to $7,476.35, because (1) the crowns *679 did not comply with the express warranty in the contract that they should be “strictly of the best quality,” (2) they were not delivered in accordance with the requirements of the defendant. The above facts show that a delivery of crowns to the defendant’s customers was a delivery to him. Welshausen v. Parker Co., 83 Conn. 231, 76 Atl. 271. Whatever causes of action, if any, arose out of the delivery of goods in breach of the contract, were causes of action of the defendant. That the defendant did not have an opportunity to inspect the crowns delivered to his customers is of no legal significance in relation to the rights arising out of a breach of the contract in their delivery. The defendant claims that, under the pleadings and the facts, the plaintiff was not entitled to a judgment for the purchase price unless it sustained the burden of proving that the crowns delivered to the defendant’s customers and accepted and used by them, were in accord with the specific warranty (or guarantee) of the contract, that they “will be strictly of the best quality,” and were delivered within the time provided. The plaintiff, on the other hand, claims that it is entitled to a judgment for the purchase price upon proof of the delivery to and acceptance of the crowns by customers of the defendant, when the defendant retained the goods for a reasonable time without intimating to it that he had rejected them, or notifying it of the breach of any promise or warranty within a reasonable time after he knew or ought to have known of such breach. Assignments of error 1, 7, 7a, 8, 10 and 11 attack the charge of the court as made in accord with the claims of the plaintiff, as follows: “Now, it is both common sense and the law that one cannot receive and enjoy the use of goods sold and delivered to him and refuse *680 to pay for them simply because they were not delivered to him within the time called for by the contract of sale. If the goods are not delivered within the time specified in his contract, he can insist on his strict legal right and refuse to accept them and thus put an end to the contract. If he does not do this but accepts the goods, he is obliged to pay for them and the delay in shipment is no defense to an action for the purchase price. The same rule applies when it is claimed that the goods delivered were not of the quality called for by the contract. If after examination of the goods or a reasonable opportunity for examination the buyer, instead of exercising his legal right to refuse to accept goods because they are not of the contract quality, does accept and use them, he is bound to pay for them and the poor quality of the goods is no defense to an action for the purchase price. It being conceded, therefore, that defendant’s customers accepted all the crowns for which the plaintiff is seeking to recover, I charge you that the plaintiff has proven the allegations of its complaint and is entitled to recover in this action the contract price of the crowns sold to the defendant as alleged in its complaint with interest thereon, and that your verdict should be in favor of the plaintiff for that amount unless you find that the defendant is entitled to recover some amount from the plaintiff under his counterclaim which should be set off against the amount due the plaintiff as the purchase price of their crowns.” Sales Act, §§ 48, 49, 63 (General Statutes, §§ 4714, 4715, 4729). The following cases support the charge of the court: Brown Bag Filling Machine Co. v. United Smelting & Aluminum Co., 93 Conn. 670, 107 Atl. 619; Katz v. Delohery Hat Co., 97 Conn. 665, 118 Atl. 88; Vapor Vacuum Heating Co. v. Kaltenbach & Stephens, Inc., 94 N. J. L. 450, 111 Atl. 171. *681 Williston on Contracts, Yol. 2, § 714, p. 1370, thus interprets § 49 above: This provision amounts to this, “that the seller’s tender of the goods is treated as an offer of them in full satisfaction [of the contract], but the buyer is allowed a reasonable time for accepting the offer. Moreover, if he declines to take the goods in full satisfaction he need not return them. The practical advantages of the statutory rule, and its ease and certainty of application commend it.” But in accord with § 49, if the buyer accepts the goods, and fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows or ought to know of such breach, the seller shall not be liable therefor. The court charged: “This rule would mean in the present case that the defendant could not recover damages from the plaintiff under his counterclaim for delay or breach of warranty of quality except in the case of those shipments where he has given notice of such breach of warranty within a reasonable time after defendant knew or ought to have known of such breach. In the case of a claim for delay, this would mean a reasonable time after the receipt of the shipment. In the case of a claim for poor quality, it would mean a reasonable time after he found out or should have found out that the crowns were of poor quality. . . . The law, which says that such notice shall be given within a reasonable time, does not prevent the parties themselves from agreeing in the contract of sale itself as to the time within which such notice shall be given, and that is just what the plaintiff and defendant have done in this contract which we have before us. . . . If you should find that the provision in the contract requiring a thirty days’ notice was under the circumstances a reasonable one and gave the defendant sufficient time in which to discover any defects in the *682 crowns and give notice thereof, then the defendant can recover no damages either for delay or because of poor quality, except in the case of specific shipments where he has made a claim thirty days after the receipt of the shipment in question. If you should find that in the case of the sale of goods of this character and under the circumstances here disclosed, a limitation of thirty days within which to make any claim on the part of the buyer was unreasonable, then the defendant would be bound to give notice within what you might find was a reasonable time, all things considered,' and could recover such damages as he might prove he had suffered by reason of breach of warranty in the case of shipments where he had given notice of such breach within the time which you find was reasonable. Such notice may have been verbal or in writing.” The above portion of the charge is attacked by assignments of error three and five. The parties by this contract fixed, as they had a right to do, thirty days after receipt of the goods as the limit of what would be reasonable time for making claims. The. charge of the court, in leaving it for the jury to say whether the thirty days was a reasonable time, was more favorable to the defendant than he was entitled to. General Statutes, § 4737. The defendant claims that the court erred in its charge as to the warranty in the contract that “the crowns will be strictly of the best quality.” The court then upon the supposition that under the evidence a question of fact was before the jury as to the quality of the crowns, presented this matter in an unexceptionable manner. The verdict indicates that the jury found adversely to the defendant. In view of the conceded facts, the defendant’s offers to prove do not present any facts requiring a charge to the jury other than that given or from which the jury *683 could'reasonably have found that under the provisions of the contract and §§ 48 or 49 of the Sales Act (General Statutes, §§ 4714, 4715) the defendant was entitled to recover under his counterclaim; no question properly arose as to the defendant’s right to recover as to a defective delivery, or for breach of warranty. The complaint of the defendant that the court erred in restricting him to such rights of recovery as arose from compliance with the Sales Act has no merit whatever. The jury by its verdict in favor of the plaintiff has found all the facts submitted to it by the court in accord with such verdict. None of the other assignments of error require consideration. We hold that the court properly charged the jury in all particulars objected to by the defendant, and that the verdict was in accord with the facts that the jury might reasonably have found, and that the motion to set it aside was properly overruled. There is no error. In this opinion the other judges concurred.