Cleary v. Barlow

Crosby, J. This is an action of contract, brought by the plaintiff as assignee of one Planick, to recover for certain diamonds alleged to have been sold and delivered to the defendant. At the close of the evidence the plaintiff filed a motion that a verdict be directed in her favor, which was [103] denied subject to her exception. The jury found for the defendant. The defendant testified in substance that she was in the jewelry business and had been so engaged since 1917; that she had previously bought goods of Planick; that late in the afternoon of September 2, 1920, he called at her store in Lawrence and showed her a package of diamonds; that she did not examine them at that time; that he told her he would like to sell'her some diamonds and was willing to leave them with her, to which she replied, “It is too late to look at diamonds, I don’t like to look over diamonds in the evening by gas light,” and he said, “I will leave them for you to look over, and you can return them as you have done other goods at any time”; that she told him she did not need diamonds then, and he said she could probably use them at Christmas time, to which she assented and agreed that he might leave them. She further testified that a custom existed between them by which she could return goods she did not want any time in January following their receipt by her; that settlements were made in January and in July. She further testified that a day or two after September 2 she deposited the diamonds in a bank and left them there until she needed some stones to use; that a month or six weeks later she took them from the bank and examined them for the first time and found that they were not the kind she used; that they were of heavy cut and off color; that she returned them in January following, and at the same time paid Planick the amount due him. He refused to accept the goods and this action is brought to recover the price. , The plaintiff denies that there was an agreement that the defendant could return the diamonds and contends that there was an absolute sale; that, even if the defendant was entitled to return the goods, she was required to do so within a reasonable time; that she returned them after the lapse of such time and is liable for the price. The negotiations relating to the purchase and sale of the goods were wholly oral. The jury could have found from the testimony of the defendant that she was entitled to return the goods at any time if not satisfactory, and that they [104] were not satisfactory as to either cut or color. In view of the testimony that in previous dealings between the parties the defendant was permitted by Planick to return goods she did not want at any time in January and July when semiannual settlements were made by the defendant, and that she returned the goods in January when she paid for purchases made during the preceding six months, it could not have been ruled as matter of law that she had accepted them and was chargeable therefor. What is a reasonable time generally depends upon the circumstances of each case. If the facts are undisputed, it is a question of law. But where material facts are controverted and depend wholly or in part upon inferences properly to be drawn, then the facts are to be determined by the court or a jury. American Steam Gauge & Valve Manuf. Co. v. Mechanics Iron Foundry Co. 214 Mass. 299. Williston on Sales, § 451. There is nothing in the sales act which affects the rights of the parties, if the circumstances relating to the delivery of the goods to the defendant were found to be as testified by her. If the goods were delivered to her with the understanding that she might return them at any time, it is plain that the title did not pass. As there was evidence that the parties did not anticipate that the defendant would have any use for the goods before the Christmas trade and she returned them in January following, it could not have been ruled that she retained them for an unreasonable time. Besides, it could have been found that Planick said to the defendant when leaving them, “I will leave them for you to look over, and you can return them as you have done other goods at any time.” This statement warranted a finding that the defendant could return the goods if she so desired in January in accordance with the custom or practice which existed between the parties. Apart from what ordinarily would be a reasonable time within which the defendant should return the goods, it could have been found that they were returned in strict compliance with the understanding and agreement of the parties, namely, when the semiannual settlement was made in January, 1921. [105] The conversation between Planick and the defendant in February, 1921, was not evidence of an attempt to compromise the claim, nor did it relate to an attempt to show an accord and satisfaction. It was not material upon any issue involved and its admission was not prejudicial to the plaintiff. Judgment for defendant on the verdict.