Cohen v. Pemberton

Loomis, J. The complaint seeks to recover the price of merchandise, consisting of hats, caps, collars and gloves, sold and delivered to the defendant pursuant to his written order, which is annexed to the finding as an exhibit. The order classified the goods wanted according to the kind and style—each class occupying a line by itself, on which was given the size and over it the number desired of that size ; at the left the numbers were summed up in fractions of a dozen, and at the extreme right the price of a dozen was given. Take, for example, the first line in the order, which also in part involves the matter in dispute:— The goods were sent in boxes, accompanied by the plaintiff’s bill, which on its face showed a full compliance with the order. The bill had also a printed heading:—“ All claims must be made within three days after receipt of the goods.” The defendant kept the goods about a month before he had occasion to open the boxes, and then for the first time discovered that some of the caps were not of the size required by his order and not of the size indicated by the labels thereon, and such goods he returned to the plaintiff, who refused- to receive them, on the ground that each dozen or fraction of a dozen was an entire contract which must be rescinded, in toto or not at all, and also that the offer to return was not made within a reasonable time; and — 232 — therefore he claimed to recover for all the goods originally delivered. The court, as matter of law, in its charge to the jury adopted the first mentioned claim of the plaintiff, and as the defendant conceded he did not return all of any one of the classes consisting of a dozen or fraction of a dozen, a verdict against him was inevitable. In thus applying the law which the plaintiff invoked as to the entirety of contracts the court was doubtless influenced by such propositions as are laid down in Clark v. Baker, 5 Met., 459, and Mansfield v. Trigg, 113 Mass., 350. It is not our present purpose to discuss the propositions referred to, nor to examine and apply the nice distinctions that obtain as to the divisibility of contracts. In Mansfield v. Trigg the court, while holding that a sale of a specific number of packages of an article at a given price per package was an entire contract, also held that “ the rejection and return of an article of a different kind or description, not answering to the terms of the contract, do not stand upon the ground of this decision, nor does the right to return them depend upon the existence of a warranty.” The defect claimed was not one of quality, but of size in respect to hats and caps. The suggestion is now made that as the extent of variation did not appear it might have been trivial, but no such point was made in the court below. The court in its ruling assumed that the claimed variation was so substantial that, if it existed as to each article composing the class, the whole might have been returned. The finding shows that the defendant on his part distinctly claimed that the variation in size was such that the articles rejected were of no use to him. We shall therefore assume for the purposes of this discussion that the variation was substantial and not trivial and immaterial. We can readily see that it might have been so material as to render the article returned a different thing from that-specified in the order, so as to come within the rule last suggested. It must be borne in mind that the identity of a thing within the meaning of the rule does not depend on its being of the — 233 — same class or kind, but rather on its adaptation to the wants and uses of buyers. The local merchant presumably has his regular customers, who require hats and caps of definite sizes, and he makes his order on the wholesale dealer with reference to this and to the probable demand. If one of the retailer’s customers sends to him for a 7-| hat, and one is sent, so labeled, but which proves to be a 6f or even a 7 in size, it would at once be conceded that the customer could reject it as a very different thing from what he ordered. A difference which is so material between the retailer and his customer, must also be important as between the wholesale and retail merchant. In Gardner v. Lane, 12 Allen, 44, A undertook to pay B a debt by delivering to him a hundred and thirty-nine barrels of No. 1 mackerel. A delivered part No. 1 mackerel, and forty-six barrels of No. 3 mackerel. B actually received the mackerel but did not open the barrels. Q., a creditor of A, attached the No. 3 mackerel as A’s property. B undertook to affirm the sale, claimed the property as his own, and replevied it. On the trial 0 claimed that no property in the No. 3 mackerel had passed to B, as the claimed delivery was a non-performance. B claimed that the difference between No. 3 and No. 1 was a difference in quality, and that the title did pass subject to his right to rescind. The court held the difference between No. 1 and No. 3 mackerel to be a difference in kind, and that no title passed to B in the No. 3 mackerel, because his contract for sale was for articles of a different kind, and that he had never assented to receive the No. 3 mackerel by reason of his want of knowledge; and so the attaching creditor held the goods. In McEntyre v. McEntyre, 12 Iredell, 79, and in Waldo v. Halsey, 3 Jones (Law,) 107, the proposition is stated as everywhere admitted to be law, that “if one, not having seen them, orders goods of a certain description at a certain price, and the goods do not answer the description, he may return them or offer to return them within a reasonable time.” In the last mentioned case the order was for bags — 234 — of a certain size, and the only defect was that they were of less size. If then we should concede that the order for each dozen or fraction of a dozen was an entire contract, and that the hats or caps sent were materially different in size from those ordered, the plaintiff himself was in default as to his contract, and could not recover anything, except for the fact that partial performance had been accepted and full performance waived by the act of the defendant. It seems to us that the court should have charged the jury in substance according to the defendant’s request referred to in his fifth assignment of error. It is suggested that the application of the principle under consideration might work injustice to the plaintiff by compelling him to deduct the proportionate price of a single article returned when the contract estimated the price only by the dozen, but a more critical examination of the contract found in the defendant’s order and the plaintiff’s acceptance of it, as indicated in his bill rendered, will lead to a different construction. So far as the disputed items are concerned there is no instance where an entire dozen is ordered, and the price for a dozen is always given, whether the fraction is large or small, but the plaintiff’s bill carries out the proportionate price. In two instances onty one article of the class is ordered and it is entered as ^ of a dozen, (we refer to the item “ colored beaver gloves ”) and yet the price of the dozen is given, namely, 154; but in the plaintiff’s bill, in addition to the price per dozen, the charge is carried out as $4.50, being precisely of the price per dozen. We think there is enough appearing to justify the inference that the statement in dozens was merely for convenience in accounting, and that the parties understood the order to mean the same as if each'separate article was itemized and carried cut at a sum indicated 'by taking one twelfth of the price given for a dozen. We think therefore the consideration by the true construction of the contract was susceptible of division and apportionment. — 235 — Our reasoning has a bearing also on the question whether the contract was entire or divisible, which, as we have already indicated, we do not intend to decide. The remaining question relative to a reasonable time for returning the goods rejected has no importance except with a view to another trial, for as under the charge of the court and the conceded facts the defendant could not return the goods at all, there was no occasion to consider the question of reasonable time for such return. The presumption is that the jury did not pass upon the question. But had it been before them the charge as given would seem to be correct. It was as follows:—“ What is a reasonable time is a question for the jury and to be determined in view of all the evidence and circumstances attending each case. What would be reasonable time under one set of circumstances might not be in another. You will take into consideration the order given, when given, the time when goods were received, the nature of the goods, the season for selling them, the acts of the parties, and all the circumstances, and view the matter in a common sense and reasonable light.” In a matter within the exclusive province of the jury, if the questions of fact are fairly submitted to them, it is not error for the court to omit all comment upon the bearing and weight of the evidence. It has been suggested that, as the printed heading of the bill sent to the defendant required that “ all claims must be made in three days,” and none were in fact made for a month, the question of reasonable time must be decided adversely to the defendant. As no reference was made to this fact in the court below and no claim was predicated upon it, we are not required to comment upon it. With a view however to another trial it may be well to say that, as the case is presented, these words formed, no part of the contract between these parties, and the defendant was not thereby limited to the time mentioned to make his objections to receiving the goods. The case of Beane v. Tinkham, 14 R. Isl., 197, fully supports this position. — 236 — There was error in the ruling complained of and a. new trial is ordered. In this opinion Park, C. J., and Carpenter and Granger, Js., concurred. Stoddard, J. It does not appear to be found as a fact that a description of hats and caps by the number as expressing the size has such a definite and precise meaning, even in that trade, that a hat or cap called seven and a quarter is a different thing, either actually or as understood by the trade, from a similar hat or cap called seven and an eighth; and it is found that the defendant admitted that he had no way of telling what the variation in size was. As this court can exercise jurisdiction to revise questions of law only, I think it can not, by assuming that the articles in question were different things, say as matter of law that the court below erred in treating the claimed variations as immaterial. I therefore can not concur in the opinion of the court.