Gibson v. Vail

The opinion of the court was delivered by Taft, J. This is an action of indebitatus assumpsit to recover the price of one set of “ Gilt Edge ” milk pans. The contract, made with the wife of the plaintiff, acting as her husband’s agent, was in writing, in the following words, viz.: [480] Mount Holly, Yt., May 31st, 1878. Mrs. J. P. Gibson: You will please send me on the 20th day of June next, one set of GILT-EDGE MILK PANS, for 30 cows, (capacity 60 U. S. Gallons,) for which I agree to pay you as follows : $120, one hundred and twenty dollars, these pans are set on thirty days trial, warranted to make more and better butter with proper care and save more than J the labor over the small pan system. The above sum includes all the fixtures except Water Tank, delivered on the cars at Rutland, Yermont. (Signed) MRS. P. P. YAIL. I. By the terms of the contract the property was delivered on thirty days trial, and if the result had been satisfactory the sale would have become absolute, and the defendant liable to pay the stipulated price. Under these facts we see no reason why, in connection with the other facts in the case, the written contract was not properly admitted in evidence. II. It is evident from the report of the referee that the pans in question were made for use in connection with a platform, partitions ' and frames, should have been set up in a suitable room, and used with ice and running water, so that the milk could have been kept at a low temperature. The plaintiff, by his agents, selected the place for their location, assisted in the erection of the platform and appurtenances, and in setting them up, and gave full directions as to their use and operation. The room in which the pans were placed, was a woodshed, in a dirty condition, roughly boar.ded, and fully exposed to the heat of the sun. The defendant had no ice, and no running water. All these facts were well known to the plaintiff’s agents; and they must have known from the beginning, that the trial would result in a disastrous failure, in much less time than that specified in the contract; such was the result as the referee expressly finds. The duty was then cast upon the defendant, of notifying the plaintiff, within a reasonable time, of the failure of the trial, that he might retake his property, unless the facts reported excuse her from that obligation. In respect to this, the referee finds that when Mrs. Gibson was applied to by the defendant, as to how the defendant should notify her of the result, she replied that she would come and see for herself; [481] and further finds, that the defendant was justified in understanding that Mrs. Gibson would so come. She failed to do so ; and the notice was not given until two months afterwards, when the plaintiff’s agent, Kelly, who was engaged in the business of selling pans with Mrs. Gibson, was informed of the result, and requested to take them away. We think the defendant was under no liability to give notice of the result to the plaintiff, unless applied to for that purpose. The property having been purchased on trial, and under the facts disclosed in the referee’s report, we think the trial was at the risk of the plaintiff. The trial ending in failure, and the defendant having performed all the obligations imposed by law upon her in the matter, we are of opinion that the sale of the pans did not become complete, and no recovery can be had for them. III. A question is made by the plaintiff upon the admission of evidence of conversations between the parties at the time the order was given. Nothing appears in the report as to what such conversations were, or that they related in any way to a qualification or change in the terms of the written contract, by any contemporaneous parol agreement, and as no presumption of this kind can be drawn we do not find any error in this respect. We think that the evidence referred to in the plaintiff’s objection, as to the location and setting up of the pans, and of the conversations of the parties, at the several times mentioned, so far as they appear, was properly admitted for the purpose of determining whether the defendant did all that was required of hhr, by the terms of the contract. IY. We think the plaintiff by his conduct, and the part he took in the transaction, assumed the risk of the failure of the trial and is chargeable with the result. It was a species of fraud to palm off upon the defendant the article in question, when the plaintiff by his agents knew, or ought to have known, that it could not have been successfully used. It is fair to infer from the conduct of Mrs. Gibson that she did not intend to return and ascertain the result of the trial. That the trial could have resulted in nothing [482] but failure, is very evident from the facts reported, and holding as we do that the plaintiff is chargeable with the result, the evidence that was offered by the plaintiff became immaterial, and we think the referee was correct in rejecting it. Judgment of the County Court affirmed.