Russell v. Lilienthal

Mr. Justice Bean, after stating the facts, delivered the opinion of the court. This action seems to have been based on the theory that all the hops had been accepted by the defendant, which he denies. There is some conflict in the findings of the court upon this issue. It is stated therein that on and prior to November 10, 1896, defendant had an opportunity to inspect all the hops, and did “accept the same,” and this finding favors such theory; but, upon the request of the defendant, additional and more specific findings were made, from which it appears that about the ninth of November the agents of plaintiff and defendant went to the farm of the grower of lot 68, in Washington County, for the purpose of inspecting the hops, but, finding them stored in an inconvenient place, it was agreed that they should be hauled to Tualatin, and the defendant should have an opportunity to inspect them there, and might reject them if they did not conform to the sample, but by mutual consent of the parties the hops were thereafter taken to Portland, and were inspected by defendant’s agent, and rejected as not being of the kind and quality called for by the contract. The court also finds that the bulk of the hops comprising such lot was not as represented by the sample, but was materially inferior thereto. The averment, therefore, that all the hops mentioned in the contract had been accepted by the defendant prior to the commencement of the action, is not supported by the findings ; and it must be taken as a fact that lot 68 had not been delivered or accepted, and did not conform to the sample exhibited at the time the contract was made, [110] but was materially inferior thereto. The court ruled, however, in effect, that the defendant was bound to accept them at the contract price, and, for his refusal to do so, rendered judgment against him for the difference between such amount and what the plaintiff actually received on the resale of the hops. It is sought to sustain this judgment upon the theory that the contract for the sale of the hops was not severable, but entire, and that defendant, having received and accepted a portion, could not refuse to accept and pay for the remainder at the contract price, although they were inferior in grade and quality to the sample, without returning or offering to return those already received ; and in support thereof the following cases are cited: Clark v. Baker, 5 Metc. (Mass.) 452; Morse v. Brackett, 98 Mass. 205; Mansfield v. Trigg, 113 Mass. 350. But these cases do not support plaintiff’s contention. In each of them the contract had been executed by the delivery of the goods, and the question was as to the right of the buyer to retain such portion as conformed to the contract, and return the remainder. The doctrine of the cases is,that, under an entire contract for the sale of separate articles or packages of property, the buyer, after the goods have been delivered, cannot rescind in part on discovering that a portion does not conform to the contract, but must’ return whatever he has received, if he wishes to rescind. If he returns a part only, the vendor may refuse to receive them, and maintain an action against him to recover a corresponding portion of the contract price, less the difference between the actual value of the inferior goods and what would have been their value had they corresponded with the contract: Morse v. Brackett, 98 Mass. 205. But none of the cases hold that a seller, under such circumstances, may recover the entire contract price for the inferior goods, as the court ruled in the case at bar. And, again, [111] the contract on which this action is based is an executory, and not an executed, contract. Under it no title to the bops passed to the defendant, nor was be bound to receive any of them, until after they had been inspected and accepted. This is the plain interpretation of the language of the contract, and was so understood by the plaintiff. In its reply it alleges that at the date of the execution of the contract the plaintiff and defendant were engaged in the business of buying and selling hops in Oregon, and a usage obtained in such business to the effect that when hops were to be bought and sold the seller exhibited a small quantity, taken from the bulk of the hops, and the sale was not .consummated until the buyer had an opportunity to inspect such bulk and accepted the same, and that the contract set out in the complaint and referred to in the answer was made and entered into by plaintiff and defendant in accordance with such usage. Defendant was therefore not required, under the contract, to receive or accept either lot of hops unless it conformed to the sample, and the acceptance of one lot would not prevent him from rejecting the others if they were not equal to the sample : Hubbard v. George, 49 Ill. 275; Cahen v. Platt, 69 N. Y. 348 (25 Am. Rep. 203) ; Kipp v. Meyer, 5 Hun, 111. And, moreover, if it be admitted that the contract is entire, and that the defendant was bound, if the plaintiff had so insisted, to accept and receive all the hops or none, its entirety might be broken by the concurrent act of both parties; and when the plaintiff delivered, and defendant accepted and paid for, a portion of the hops, without anything being said about the remainder, the parties by their conduct gave an implied assent to the severance of the contract to that extent at least: Benjamin, Sales, § 426. We think, therefore, that, under the findings of fact in this case, plaintiff was' [112] not entitled to recover; and the judgment of the court below must be reversed, and the cause remanded, with directions to enter judgment in favor of defendant. Reversed.