Tilton Safe Co. v. Tisdale

The opinion of the court was delivered by Barrett, J. “The plaintiffs shipped a No. 4 safe with combination lock of their make to the defendant.” This was so far a strict [89] compliance with the defendant’s order. It was the very thing the terms of the order called for. There was no implied warranty as to the merit or usableness of the lock, but only that it should be answerable to the call of the order. If it did not answer that call, or if the plaintiffs practiced a fraud in the matter of the body of the safe or the lock, it was the right of the defendant to return the safe as soon, within reasonable time, as the defect was discovered. It was not returned for several months. Of course such return could not operate as a rescinding of the purchase. The safe became the property of the defendant, with the duty on him to pay for it according to the terms of the trade, subject to such recoupment as he might be entitled to have on the score of any fraud practiced on him by the plaintiffs. There was no question but that the lock in hind answered the order, nor was there as to the safe. The matter then stood solely on the question whether the alleged fraud was committed by the plaintiffs. This question was submitted to the jury in an unexceptionable manner, and was determined in favor of the plaintiffs. As to the excluded evidence, it is difficult to see how whether the safe was on hand at the time the bargain was made, or was ma'dq afterwards, had any bearing as to what was the actual condition of the safe when delivered to and received by the defendant. No evidence appears to have been given that it was a second-hand safe. Whatever defects were in it indicating fraud practiced by the plaintiffs, were available to the defendant without regard to the time when it was made. And they were neither more nor less by reason of the time when it was made. As that evidence had no bearing on the actual condition of the safe, and was outside of the written contract, it was properly excluded. The court were not in error ¿s to interest. As the defendant declined to act on the letter of plaintiffs of February 27th, he was left to stánd on the terms and effect of his order. Judgment affirmed.