Davis v. Downs

By the Court, Willson, J. The exception to the charge of the Court below, was abandoned on the argument, and ir will, therefore, only be necessary for us to review the remaining exception. The defendants in error were bound by the contract, to deliver fifty sets of skeins and boxes as soon as practicable. No time for the delivery was fixed by the contract; they were, therefore, entitled to a reasonable time for its fulfillment on their part. It is insisted on the part of the plaintiffs in error, that the contract was entire, and that, unless it was fulfilled by the vendors, the vendees could reject the article, and rescind the ■contract. Whether the contract was entire or apportionable, it is not material for us to determine, inasmuch as we are of opinion that the plaintiffs in error undertook to rescind it prematurely. In other words, the plaintiffs undertook to ■rescind the contract before a reasonable time for the delivery of the articles had elapsed. This will be apparent by a reference to the date of the contract; the distance between the place of manufacture and delivery ; the unusual size of the skeins and boxes ; and the consequent necessity of making new patterns ; and the time when the articles were delivered. It appears from the evidence, that on the receipt of fifteen sets only, they pass judgment on the whole fifty sets. It was premature in the plaintiffs in error to reject those not yet received for defects in the castings, and there is strong reason to presume that the plaintiffs in error were mainly induced to reject the articles for the reason that they were of an inappropriate size, and not adapted to the use for which they were designed, rather than from any defect in the manufacture. The evidence further shows, that the defendants in [535] error acted in good faith; that the defects complained of, if they existed, were not noticed by them before the delivery of the castings, and they immediately offered to supply the place of the defective castings with those of good quality at their own expense, and thus fulfill the contract on their part within a reasonable time from its inception. But the plaintiffs in error, when only fifteen sets had been received by them, twenty-one days after the contract was made, without examining the remaining Sets, refuse to receive them, or to allow the contract to he made effectual hy receiving fifty good sets. The proposition on the part of the defendants in error to furnish good sets in the place of those which were defective, was both timely and reasonable, and should have been adopted by the plaintiffs in error. The evidence clearly warranted the charge of the Court, and the verdict of the jury. The judgment of the Court below must be affirmed, with cost to the defendants in error. Present, Willson, Green, Bacon, Martin, Douglass, J. J.