Eason Drug Co. v. Montgomery Showcase Co.

de GRAFFENRIED, J. — This litigation arose out of a sale by the Montgomery Showcase Company of a showcase to the Eason Drug Company. The showcase was manufactured by the Montgomery Showcase Company for the Eason Drug Company, and was shipped by the showcase company to the Eason Drug Company, at Ozark, Ala. The terms of sale were cash, and when the case was shipped the showcase company drew on the [457] Eason Drug Company for the purchase price. Attached to the draft was the bill of lading which had been issued by the railroad company to the showcase company. Of course, in order to get the possession of the showcase out of the railroad company at Ozark, it was necessary for the Eason Drug Company to pay the draft, and thus get possession of the bill of lading which was attached to the draft. This the Eason Drug Company failed to do, and the railroad company finally sold the showcase for freight and storage charges 1. There was but one count to the complaint, and in that count the plaintiff, the showcase company, claimed of the defendant “the sum of $77.50, with the interest thereon, for goods and merchandise sold by plaintiff to the defendant, which amount was due and payable on the 20th day of April, 1911, and which amount is due and unpaid.” We desire to say, in passing, that there is, under the very terms of the written evidence of the contract of shipment, nothing in the contention of appellant that the $77.50 did not become due the plaintiff until the showcase was in the depot at Ozark ready for delivery to the defendant. The contract contains the following express stipulations: “Terms net cash. All terms mean from date of shipment and not from date goods are received.” The goods were delivered to the railroad company and bill of lading obtained therefor on April 20, 1911. We may also say, in passing, that we deem it unnecessary to consider the action of the trial court in sustaining the plaintiff’s demurrer to plea 3. Under plea 2 the defendant was entitled to malee the identical defense which was set up in plea 3, and plea 2 placed fewer burdens, in so far as the evidence that was necessary to sustain it is concerned, upon the defendant than plea [458] 3. The record therefore affirmatively shows that no injury was done the defendant by the. elimination of plea 3 from the complaint. 2. The Montgomery Showcase Company evidently has a printed form — with blanks to be filled in — of a contract covering contemplated sales of its furniture. Some of the clauses in this form plainly show by their terms that they are applicable only to sales on time, and have no applicability to sales for cash. Other clauses apply to both time and cash sales. One of the clauses is as follows: “It is fully agreed that if goods are not up to contract the Montgomery Showcase Company may enter my — our—premises and take possession and remove same without process of law. It is fully agreed and understood that a detention of the above property for ten days by me — us—without' complaint, constitutes acceptance, and it is a conclusive admission of all representations made by or for consignor, and void of all contracts as to warranty expressed or implied.” This, as already stated, was a cash sale, and the above provision applies to both sales for cash and on credit. The rule that, “if the facts justify it, the buyer may rescind a contract of sale, return the article bought, and sue for the price paid, or, if the facts justify it, he may affirm the contract and maintain an action for breach of warranty,” is familiar.—Abraham v. Browder, 114 Ala. 287, 21 South. 818. The above-quoted clause in so far as the defense attempted to be set up by plea 4 is concerned, simply means that, if the Eason Drug Company kept in its possession the show case for ten days without complaint, then that it should be held conclusively to have unqualifiedly accepted, as satisfactory in all respects, the said showcase. It does not mean that the showcase compa [459] ny did not have the right, through draft with bill of lading attached, to require the defendant to pay for the showcase before obtaining possession of it, or that the showcase company was to allow the drug company ten days, or, as to that matter, any time, within which to inspect the showcase before obtaining possession of it from the railroad company at Ozark. If, in the instant case, the drug company had paid the draft and taken possession of the showcase, then, under the clause above* quoted, it would have had ten days within which to have examined the showcase. If, during that period, it had discovered that the showcase did not meet the requirements of the contract, then during that period it could have made complaint to. the showcase company, and either returned the showcase and demanded the purchase price, or it could have kept the showcase and brought suit against the showcase company for damages for the breach of warranty.—Abraham Bros. v. Browder, supra. The plaintiff was entitled to affirmative instructions’ in its behalf as to the defense attempted to be set up in plea 4. 3. The issues presented by pleas 1 and 2 were for the jury, and the jury settled those issues in favor of the plaintiff. We can see no reason why the trial court, under the conflicting evidence in this case, should have disturbed that verdict. Under the terms of the contract, the purchase money was due the plaintiff when delivery of the showcase was made to the railroad company at Moutgomery, and there was a provision in the contract that: “S. D. (sight draft) for cash payment and B-L (bill of lading)- will be sent through - Bank. Where no bank is specified, you are at liberty to ship through any bank you may see fit.” • [460] The draft in this case ivas drawn under this quoted provision, and the contract expressly gave the drug company ten days after taking possession of the showcase within which to inspect it. It was therefore within the contemplation of the parties that the inspection of the showcase should take place after its receipt by the drug company.—35 Cyc. p. 226. We find, upon all the issues, abundant evidence to support the verdict of the jury, and we cannot, as already said, hold that the trial court erred in refusing to set the verdict aside. The judgment of the court below must therefore be affirmed. Affirmed. Anderson, C. J., and McClellan and Sayre, JJ., concur.