Newburger & Brother v. Hoyt

Simmons, Justice. The facts will be found in the official report. The contract set out therein was one known as a contract of sale or return. In this class of contracts the property and goods vest immediately in the buyer, with an option to return or resell to the original vendor such as may remain on hand at-a stated time. It amounts to nothing more than a mere privilege to rescind the sale. Until the option to return is exercised, title remains in the buyer. If no particular time is fixed for the return, 514 then a reasonable time in which to do so is allowed ; but if a particular time is fixed, the return must be made within that time, and the question of reasonable time does not enter. Benj. Sales, Bennet’s notes, p. 560; 3 Am. & Eng. Ene. L. 438. "Under this contract, Hoyt & Co. bought the cigars upon four months time, and had until the end of that time to ascertain whether they gave satisfaction and whether they could build up a trade in them; and what was left on hand at the end of four months they had the right to return at the expense of Newburger & Co. in the event they did not give satisfaction and they could not build up a trade in the cigars. They had the full four months time to ascertain this. And if at the expiration of the four months they were not satisfied with the cigars, they had a reasonable time thereafter in which to return them, and were not compelled, in our opinion, to return them on the day the four months expired. But it was contended by counsel for the plaintiffs in error that if they were not compelled to return them at the expiration of the four months, and were to be allowed a reasonable time thereafter, the time from the expiration of the four months until the cigars were lost by the flood was an unreasonable time, and therefore Iioyt & Co. were liable for the loss. This perhaps would be true were it not for the special facts in this case. The record shows that about the time of the expiration of the four months, a dispute arose between Iioyt & Co. and Newburger & Co. concerning the contract, New-burger. & Co. contending that it was a straight out sale to Hoyt & Co., and that their agent had no authority to make with Hoyt & Co. the contract of sale or return evidenced by the writing in this case. The record shows that correspondence and negotiations were going on between the parties and counsel with a view to a settlement of the claim, Hoyt & Co. having tendered the 515 cigars to the counsel of Newburger & Co. ancl offered to pay for what cigars they had sold. Under these facts, we agree with the court and jury below that the time between the expiration of the four months and the loss of the cigars was not so unreasonable as to throw the loss upon Iioyt & Co. • Judgment affirmed.