National Novelty Import Co. v. Ellis

Humphreys, J. Appellant instituted suit against appellee in the mayor’s court at Nashville, to recover $198 for a showcase and jewelry sold by appellant to appellee through its saleman, P. H. Lea. The sale was evidenced by a written order with contract attached, setting out each item sold and the price therefor. The contract made the basis of the suit embraced 33 lots of novelties, each lot containing many items, valued separately, and agregating $19i8. One paragraph of the contract, designated “warranty,” is as follows: “Should any article of jewery fail to give satisfaction as to workmanship, quality or wear, same may be returned to us by the consumer at any time within five years and we will refund in cash the price paid at retail for same, or furnish a new article free of charge.” Appellee prevailed in both the mayor’s court and the circuit court, to which the cause was appealed. Prom the judgment rendered in the circuit court, an appeal has been duly prosecuted to this court. The undisputed evidence showed that the goods were sold by sample. The evidence is in conflict as to whether the jewelry shipped corresponded in kind and quality with the sample exhibited. The testimony of the witnesses on behalf of appellee was to the effect that only two or three articles on top were equal, and the others were inferior in kind and quality to the sample. Immediately upon the receipt of the goods, appellee shipped all of them, except the showcase, back to appellant, claiming that they did not correspond to the samples. He offered to keep or return the showcase at the option of appellant. The showcase had been shipped to him from another house on the order of appellant. Appellant declined to take the goods back or allow appellee to pay for the showcase separately, and demanded payment of the aggregate amount of all the articles, as per contract price on each. So far as appears, the jewelry remained in the custody of the express company after being shipped back, each party to the litigation disclaiming ownership thereof.. It is contended by appellant that appellee is estopped to defend against the suit for the aggregate contract price of the articles on the ground that they did not conform to the samples exhibited, because some of them did correspond to the sample, and because the burden rested upon appellee to show which did not. In support of its contention, the appellant invoked the doctrine announced in Pratt v. Metzger, 78 Ark. 177, in relation to a suit predicated upon a written breach of warranty contained in the contract, which doctrine is as follows (quoting syllabus 3): “Where a contract for the sale of goods embraced numerous items, sold by samples and warranted to be the same in quality as the samples, and the price to be paid was apportioned to each item, the contract was severable, and the purchaser was bound to accept such of them as corresponded to the samples.” We think the doctrine has no application where only a nominal part of the items or quantity of the goods sold and purchased conformed to the samples exhibited, as in the instant case. According to appellee’s evidence, only two or three articles, out of a large number purchased, corresponded with the samples, and these were on top in the carton; the others failed to come up with the samples, and were so much “junk.” According to appellant’s evidence, every article conformed to the corresponding sample. The amount of goods and number of articles conforming to sample being inappreciable, according to appellee’s theory, the court properly ignored the rule invoked by appellant, even if applicable to case based upon an implied warranty that the goods equaled the sample. It is next insisted that the contract contained a written warranty which imposed a duty upon appellee to accept the goods and pursue the remedy outlined,in the warranty clause contained in the contract. In other words, it is contended that the warranty clause in the contract abridged appellee’s right under the general law governing sales by sample from rescinding the sale or returning the goods for nonconformity to sample. The clause referred to is set out above and is only applicable to the purchaser, or appellee, after acceptance of the goods and sale of any item or article to a third party, and has no relation whatever to appellee’s right to return the goods under the general law for failure to correspond with the sample. The fact that the measure of damages was fixed at the retail price in the warranty clause, if the jewelry failed to give satisfaction in workmanship, quality and wear, within five years, is conclusive that the warranty clause was intended to govern after, and not before, acceptance by the appellee, and, therefore, did not preclude appellee from his right to return the goods under the general law if they failed to come up to sample. All the instructions requested by appellant and refused by the court were drafted upon the theory that, under the written contract, appellee was precluded from returning the goods for failure to correspond with the samples exhibited and therefore were erroneous and properly excluded. The question of whether the goods shipped conformed to the samples exhibited was a material issue in the case. The evidence upon that point was in conflict. Upon that issue, appellee was permitted to introduce, over the objection and proper exception of appellant, the evidence of Charles Roland, a merchant at Fulton, Arkansas, and W. H. Latimer, a merchant at Buck Range, Arkansas, to the effect that, on the same trip, H. P. Lea, agent of appellant, sold each of them similar goods upon samples; that the goods shipped did not correspond with the samples; that a few pieces on top were like the samples, but the further you got down into the package, the worse it got. It is insisted that the transactions with Roland and Latimer involved independent contracts with different parties, and, for that reason, evidence concern-them was incompetent, irrelevant and prejudicial to the rights of appellant. The contracts were similar in kind, made on the same trip and in the same vicinity, and, therefore, admissible as tending to show a design or system. Upon that ground, evidence concerning them was admissible. No error appearing, the judgment is affirmed.