McCarty v. Gordon

The opinion of the court was delivered by Brewer, J.: The action below was for liquors sold and delivered by defendant in error to plaintiff in error. The case was tried before the court without a jury. No special [37] findings of fact were made, and no exceptions to the introduction of testimony. So that the only question presented for our consideration is, whether the evidence is sufficient to sustain the judgment. It appears that Gordon, the plaintiff below, was a wholesale liquor-merchant in St. Louis; .that the liquors were sold and delivered to McCarty. The special defense was, that plaintiff had no license to sell liquor in the state of Kansas, and that the liquors were sold in Leavenworth. On the contrary, the testimony shows simply that orders were taken in Leavenworth for the goods, which orders were filled in St. Louis, and the goods shipped therefrom to plaintiff in error. This brings the case clearly within the cases of Haug v. Gillett and Williams v. Feiniman, heretofore decided by this court; (14 Kas. 140, 288.) But it is said that there is this difference, that here the goods were sold by sample, and that it was expressly agreed that the goods were not to be received and accepted by McCarty unless they “ proved identical with the order given, in quality and in quantity,” and that he “reserved the right to reject the liquors, so ordered and sent, for any deficiency in quality or quantity; and in case of such deficiency to return the goods to plaintiff.” We cannot see that this difference is material. The express contract was no more than the one the law would imply from a sale by sample. It is always understood that a party purchasing by sample is under no obligation to receive the goods sent unless they correspond with the sample, and are equal to the quantity ordered. The case of Brothby v. Plaisted, 51 N. H. 436, (also a liquor case,) is exactly in point, and sustains the views we have expressed. Again, it is urged that, though these principles may be applicable to most of the account, yet as to one barrel of whisky the circumstances of the sale make a very different case, and show a sale in Leavenworth. It appears from the testimony of McCarty that one barrel of whisky that was shipped to him was inferior to the sample, and that he refused to accept it, and so notified plaintiff; that upon plain [38] tiff’s request it was not reshipped to St. Louis, but held in Leavenworth until plaintiff came, and that plaintiff in Leavenworth made a new contract with him, and sold and delivered the whisky at twenty-five cents a gallon less than the price originally charged. Conceding, for the purposes of this case, that this shows a sale in Leavenworth, we are still constrained to sustain the judgment, and for two reasons: The account is for six barrels of whisky, each containing a different number of gallons,, and at various prices per gallon. Now we are not informed by the testimony which barrel it was that was so sold, and there is nothing in the account, or the testimony, upon which we could base even a reasonable guess concerning it. Again, the defendant has paid in different sums an amount far exceeding the price of any one barrel. It does not appear that these payments were- made as payments for any particular 'barrel, but simply on account of the entire debt. But they were so paid that no barrel was delivered without subsequent payments large enough tó more than equal its price. So that if the debtor had not applied the payment to the purchase of any particular barrel, and the creditor had applied it to the payment of the one sold in Leavenworth, it would have more than paid therefor. Now in view of these facts, and inasmuch as the court made no special finding of facts, but only a general finding for plaintiff, it does not seem to us that we can hold that there is error apparent in the record. The judgment must be affirmed. All the Justices concurring.