Rumsey & Co. v. Colman

Mr. Presiding Justice Dibell delivered the opinion of the court. Appellant claims the meaning of the language quoted in the foregoing statement, from the letter of February 22d, is that if Eumsey & Co. would ship 150 more shells and plungers, Barber & Colman would keep and pay for all the parts first shipped for the 150 pumps, including the shells and plungers, and would also pay for the second shipment of 150 shells and plungers. If that was the meaning of the letter, Barber & Colman had no need to complain of what they had received, but would simply have ordered 150 more shells and plungers, made strictly in compliance with • the plans and specifications. After stating the defects of the various parts, the letter says, “ Ip order to make your loss as small as possible, we are willing to accept the goods, provided,” etc. To what loss of Bumsey & Co. did Barber & Colman refer ? If appellant’s interpretation of the letter is correct, Bumsey & Co. was to be paid for all the shells and plungers it sent, whether they could be used or not, and was to lose nothing. We think it clear the letter means, “ In order to make your loss as small as possible, we will -waive all lesser defects we have pointed out, if you will send us new shells and plungers, corresponding to the plans and specifications, to take the place of those shells and plungers you have sent, .which do not comply therewith, and which we will not accept.” Before Bumsey & Co. accepted the order it wired Barber & Colman to know what it would cost to make changes and use the pumps already shipped, and was told in reply, <l Impossible, as stated in letter, to use shells or plungers.” Language could hardly make it plainer, that Barber & Colman would not, and claimed they could not, use the shells and plungers already received. It is not reasonable to suppose Barber & Colman intended to pay for the 150 shells and plungers which they could not use, or that Bumsey & Co. expected them to do so. With full knowledge of the meaning of the letter as explained by the telegram, Bumsey & Co. wired an acceptance of the proposition, and the contract was complete; and it was clearly a contract to supply the place of the 150 shells and plungers first shipped with 150 other shells and plungers, which should comply with the specifications and obviate the objections pointed out, and which Barber & Colman could use. It was not in the power of Bumsey & Co., by then writing a letter which would reach Barber & Colman two days later, to change the contract, import a different meaning into their, telegram of acceptance, and make Barker & Colman pay for the shells and plungers they had refused to use. It is not clear such was the meaning Bumsey & Co. intended to convey by their letter of February 24th. Barber & Colman, however, did not let its ambiguous language pass unnoticed, but in their reply of February 26th, stated that they could not accept the goods till the errors were corrected. The letter Eumsey & Co. wrote on February 27th, implies they were not to_ be paid for the first lot of shells and plungers, and they wished the samples sent approved that they might not “ make another lot without knowing they are correct.” We are satisfied the judgment below is based upon a correct interpretation of the correspondence. It is argued a dissatified party can not repudiate an undesirable part of a contract while retaining that favorable to himself, but must repudiate all, if any; and that Barber & Colman were obliged to accept or repudiate the entire first shipment of the parts for the 150 pumps; and having used a part of said shipment, are bound to pay for the whole. The rule referred to is not applicable to the facts. Barber & Colman, by their letter of February 22d, gave Eumsey & Co. the option to replace the most defective parts with others free from defects, or they would repudiate the entire contract and hold the goods subject to the order of Eumsey & Co. Eumsey & Co. accepted the former alternative and made a contract to' replace the defective parts, and did so; and received the contract price. • , Under date of June 7, 1897, Barber & Colman wrote Rumsey & Co.: “We shall refuse draft as we do not owe you $200i We enclose statement and $45.42 to balance account, also freight vouchers. Kindly receipt in full.” Rumsey & Co. retained the sum so remitted. Ko consent of Barber & Colman is shown for its application as part payment only. Under the authority of Ostrander v. Scott, 161 Ill. 339, Mexican Amole Soap Company v. Clarke, 72 Ill. App. 655, and Off v. Inderrieden Company, 74 Ill. App. 105, the retention of this remittance under the circumstances stated was a satisfaction of the claim. We find no reversible error in the rulings of the court upon the evidence and instructions. The judgment will be affirmed.