Hilliard v. Weeks

Holmes, J. This is an action to recover the price of some soles, purchased of the plaintiff by the defendant. The dispute is over the right of the defendant to return light soles found among the goods. The defendant testified that he bought the soles from the plaintiff’s salesman,one Parrott,upon the express' condition that when he came to use the soles he could throwout the light ones and the plaintiff would replace them. Parrott’s authority is disputed, but the plaintiff admitted in his testimony that Parrott had to use some independent judgment, and at all events the plaintiff must take the bargain as it was made if he chooses to sue upon it. When the defendant came to use the soles he found more light soles than he expected, and told Parrott, who wrote a postal card to the defendant request [305] ing him to ship them back to Lynn at his earliest convenience. This was done, but the plaintiff refused to receive the goods. It will be seen that Parrott’s writing only carried out the original bargain, as testified to by the? defendant. But beside this fact there was testimony from Parrott that his postal card was sent after a conversation with the plaintiff, in which he mentioned that the defendant was going to return the soles, and the plaintiff made no reply ; and that later in the day Parrott told the plaintiff what he had done. The plaintiff seems to have received this information also in silence, without protest or objection, and he did not write to the defendant refusing to accept the return of the soles until two days later. The foregoing facts afford some evidence that Parrott was acting by authority in what he did. Of course, upon the defendant’s evidence, the return of the soles was not a new bargain, but was made under the original understanding, so that no memorandum was necessary under the statute of frauds; and, as the soles were not replaced, their cost price is to be deducted from the total price agreed. It is not a matter of set-off, (Groldthwait v. Day, 149 Mass. 185, 187,) but a rescission pro tanto of the sale. Exceptions overruled.