Salant v. Dannenberg Co.

Hill, C. J. (After stating the foregoing facts.) Assuming that the finding of the judge on the issues of fact is conclusive, one question of law is presented. Did the conduct of the Dannenberg Company in receiving the shirts, placing them in its store, and subsequently selling them to prevent further deterioration in value, for the purpose of lessening the loss, amount 265 'to an acceptance of the shirts and a waiver of its right to sue Salant & Salant for a failure to deliver in accordance with the contract? It is well settled that where goods are sold by samples exhibited, an express warranty arises that the goods subsequently to be delivered will be of the same quality as the samples, and that on receipt of the goods the buyer is not bound to inspect before acceptance; but if, on receipt, he does inspect, and discovers defects before acceptance, it then becomes his duty to reject them. If, after knowledge of the defective quality, he retains the goods and deals with them as his own, such conduct will amount to an acceptance and will be a waiver of the defects so discovered. Christian v. Knight, 128 Ga. 501 (57 S. E. 763); Carolina Portland Cement Co. v. Turpin, 126 Ga. 677 (55 S. E. 925), and citations. Here the proof is that the purchaser, before acceptance, discovered the inferior quality of the shirts as compared to the samples, and immediately notified the sellers of the fact, and that the shirts were held subject to the sellers’ order and directions as to disposition or shipment. While the Dannenberg Company placed the shirts in its store, it did not treat them as a part of its stock by selling any of them to customers ; but when the sellers absolutely refused to take the shirts back, or to give any direction as to disposition, and when the shirts were deteriorating in value by dust, the depredation of rats, etc., the purchaser sold them for the purpose of lessening the eventual damages. This conduct did not amount to an acceptance of the shirts; for, when the purchaser at once notified the sellers of the inferior condition of the shirts, and offered to reship them, stating that they were held subject to the sellers’ order, the purchaser did all' it could do; and when, after the refusal to rescind, the shirts were deteriorating in value, it was the purchaser’s duty to sell, in order to diminish the damages. It is insisted by the plaintiffs in error that the purchaser, by selling the goods, made it impossible for the sellers to retake the ■goods, and, therefore, that the purchaser can not claim a rescission. The answer to this contention is obvious. The sellers had previously absolutely refused to retake the goods, and there was nothing left for the purchaser to do, except to hold the goods as the involuntary bailee of the seller. Civil Code (1910), § 3495. If there was a breach of duty on the part of the purchaser as such bailee, it should have been set up by plea; but the defendants’ only 266 plea was that the shirts were as warranted. There was no plea that the plaintiff had accepted the shirts, nor was there any effort to set off or recoup the value of the rejected shirts. If the sellers had claimed that they were entitled to the amount for which the shirts had been sold, the claim would doubtless have been allowed. Tinder the pleadings and the evidence, we think the finding of the judge was correct. Judgment affirmed.