Fair & Martin Inc. v. Brewer

Hill, J. (After stating the foregoing facts.) 1. We think the court erred in excluding from evidence the letter of the defendant to the plaintiff, dated April 27, 1917. No objection was made to the introduction of this letter on the ground that it was a letter-press or carbon copy, and not the original. The objections urged were, “ that the letter was irrelevant and immaterial, and that it contained self-serving declarations, and drew conclusions as to previous correspondence and construed previous correspondence between the parties, and that the telegram which the letter sought to construe was in evidence and was the best evidence. ” This letter was relevant and material on one of the controlling issues in the case. It is well established that “it is [313] the duty of the buyer to act promptly in making an examination of goods sent on his order, to see whether they comply therewith, and to give prompt notice to the seller of their rejection if found defective, if he intends to avail himself of that remedy. ” 23 Ruling Case Law, 1434, § 257. Fair & Martin had ordered the shipment of tomatoes ■ diverted to them from the original destination, and this had been done by Brewer.. As soon as the carload of tomatoes arrived in Atlanta, Fair & Martin inspected them to see if they were as represented. This they had the right to do, and had been requested to do by Brewer. Immediately after inspection Fair & Martin wired Brewer that the tomatoes were of “inferior quality, large percentage showing black spots, some green stock showing decay. ” This telegram was clear as to the complaint that the tomatoes were of inferior quality, but it did not show that for this reason they were rejected by the purchaser. The letter following the telegram removed all doubt on this point, and made positive and clear the rejection of the tomatoes for the reason stated in the telegram and repeated in the letter. The letter following the telegram was a part of the res gestee of the transaction. The evidence as to the quality of the tomatoes was in conflict. The character of the shipment made imperative the enforcement of the rule of law that the purchaser should give prompt notice to the seller of the rejection, and of the reason therefor. This point was in sharp issue between the parties, and the letter was illustrative of this issue, and should have been admitted. Besides, the letter was admissible without reference to the previous telegram. It was pertinent to the legal question as to whether the purchaser had exercised due and proper diligence in giving the seller notice of the rejection of the tomatoes because of their alleged defective condition, and this was for the jury to determine. 2. The second assignment of error is without merit. There was evidence upon Avhich to predicate the instruction that, “if the railroad company agreed to and did offer to deliver the car to defendant without transfer of this bill of lading, then the failure to transfer the bill of lading Avould not of itself defeat the plaintiff’s right of recovery, if he was otherwise entitled to recover. ” This was a suit on account to recover the contract price of the goods. It was essential to the seller’s right of recovery to [314] affirmatively show' that title to the tomatoes had passed to the purchaser, and it was insisted that this burden had not been successfully carried. It was contended that the evidence showed that the seller took the bill of lading in his own name, and that the car of tomatoes ivas consigned to his own order when the shipment was made to Cincinnati, and afterwards diverted to the defendant in Atlanta by express order given by the shipper to the carrier. The order, to divert was complied with by the carrier, who actually delivered the shipment to the defendant in Atlanta. The actual transfer of the bill of lading by the seller to the purchaser, under these facts, was not essential. Notice by the shipper to the carrier to divert the shipment to the purchaser was equivalent to a transfer of the bill of lading. “ A consignor of goods which have been shipped to a designated consignee has a right to direct a change in their destination, while the goods remain in the possession of the carrier, and the carrier is bound to obey such direction. ” Lewis v. Galena &c. R. Co., 40 Ill. 281. We reverse the judgment refusing a new trial, because of the error discussed in the. first division of this opinion. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.