Thick v. Detroit, Utica & Romeo Railway

Grant, J. (after stating the facts). 1. The declaration alleges a contract to buy of plaintiff, the ties to be delivered by him to defendant at Detroit, and to be paid for on delivery; the promise on the part of the defendant to accept and receive them; plaintiff’s readiness and willingness to carry out the contract; and the refusal by the defendant to accept the ties selected by him in accordance with the agreement, and consequent loss of profits. The plea was the general issue. Upon the trial defendant objected to the admission of any evidence, for the reason that the declaration did not state a cause of action. The precise objection is that the declaration does not allege delivery, or offer to deliver, or ability to deliver, or that he was prevented from delivery by the defendant. The declaration should, perhaps, have been more specific; but, if it is sufficient to sustain a judgment, the only course open to defendant was to demur. Rowland v. Kalamazoo Superintendents of Poor, 49 Mich. 553 (14 N. W. 494), and authorities there cited. The declaration alleges a selection of ties according to the contract and the refusal to accept them. Under plaintiff’s version of the case a [712] delivery or formal offer of delivery was unnecessary. A refusal on the part of defendant to carry out the contract justified plaintiff in treating it as broken, and bringing suit for damages. We think the declaration states a cause of action, and that, if defendant desired a more specific one, it should have demurred. 2. We do not think it was error to permit plaintiff to show his ability to procure ties by purchase or otherwise to fill his contract. 3. About two months after the conversation above detailed between plaintiff and Davis, Davis on behalf of the defendant made a contract with other parties to furnish ties. Plaintiff was permitted to show that some of these ties were a part of the lot which plaintiff had contracted for at Posen. This evidence was wholly immaterial. It had no tendency to sustain the plaintiff’s case. It was not contended that there were not good ties in that lot. Some of them passed the inspection of the inspector first sent there under the telegram from plaintiff to defendant. The admission of this evidence might not constitute error of sufficient gravity, to reverse the case if there were no other errors. 4. The contract provided for no inspection. It was the duty of the plaintiff to deliver the ties at the place named. There was no subsequent agreement for inspection. Evidently plaintiff could not purchase the ties at Posen without an inspection satisfactory to the person from whom he purchased. Plaintiff’s request by telegram to send an inspector, and defendant’s compliance with the request, did not change the contract, or provide for a binding inspection. Plaintiff recognized this, for he repudiated the inspection. If the parties had agreed to an inspector, his inspection, in the absence of fraud or mistake, would have been conclusive. Under plaintiff’s version defendant refused to provide and send another inspector. It was then clearly plaintiff’s duty to deliver the ties at the time and place agreed upon. It was, therefore, error to submit to the jury the question of any change in the contract. [713] 5. The circuit judge instructed the jury that a sight •draft accompanying the bill of lading was equivalent to the payment of cash on delivery. This was error. The contract is unambiguous. All prior conversations were merged' in it, and were inadmissible in evidence. It was the duty of the plaintiff to deliver ties of the character ¡specified. It was the right of defendant to examine them before accepting and paying for them. Plaintiff had no ties at the time to deliver. Plaintiff might manufacture them, or might purchase them from others. The law applicable to this case is stated by the Supreme Court of the United States in Pope v. Allis, 115 U. S. 363, 372 (6 Sup. Ct. 69, 73): “When a vendor sells goods of a specified quality, but not in existence or ascertained, and undertakes to ship them to a distant buyer when made or ascertained, and delivers them to the carrier for the purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the •quality required by the contract.” Where goods are sold and shipped to the vendee, and the vendor draws a sight draft with bill of lading attached, bhe vendee is not entitled to examine the goods in the hands of the carrier until he pays the draft and procures the bill of lading. In such case the vendee’s only remedy is, having paid for the goods, to rescind the sale and sue for the purchase price, or to retain the goods and bring suit for damages. 2 Dan. on Neg. Inst. § 1734c; Whitney v. McLean, 4 App. Div. 449 (38 N. Y. Supp. 793). The •parties may agree that the vendee and drawee may inspect before acceptance and payment, but, unless they do, no •such right exists; or, if the vendor accompanies his draft with an offer of inspection before acceptance, that is sufficient tender of performance. Judgment reversed, and new trial ordered. The other Justices concurred.