Stearns Salt & Lumber Co. v. Dennis Lumber Co.

Kuhn, J. On December 29, 1911, the defendant company placed an order with the plaintiff company by telephone for two car loads of a certain grade of — 701 — lumber, and followed this by letter confirming the same, which read as follows: “Dennis Lumber Company. “Grand Rapids, Mich., 12-29-11. “Stearns Salt & Lumber Company, “Ludington, Mich. “Gentlemen: “Confirming conversation over the phone the other evening with Mr. Holland, at which time he booked our order for the two more cars of 4 in. No. 4 pine crating strips D2S to % in., to be same quality as the last shipped us, we wish to inquire as to how soon you will be able to make shipment of these two cars. “Awaiting your reply, we are, “Yours very truly, “Dennis Lumber Company.” To this communication the plaintiff company replied under date of December 30, 1911, advising that the lumber would be shipped at once. On January 6, 1912, the plaintiff mailed to the defendant an invoice of the first car of lumber shipped, and on January 11, 1912, sent an invoice of the second car load shipped. The first car of lumber was placed for unloading February 19, 1912, and was unloaded on the following day. The other car was placed for unloading on February 21, 1912, and the unloading of that car was completed within two days, on February 23d. On the next day, February 24, 1912, defendant notified plaintiff of the rejection of part of the lumber received, by the following communication: “Dennis Lumber Company. “Grand Rapids, Mich., Feb. 24, 1912. “Stearns Salt & Lumber Co., “Ludington, Michigan. ’“Gentlemen: “We herewith hand you report on the two cars of pine crating as follows: B. & M. 61015 — 27,106 ft. of good 1,479 ft. of worthless culls — 702 — 28,585 ft. total which shows —a shortage of 32 ft. O. C. L. 9114___25,540 ft. of good 2,395 ft. of worthless culls 27,935 ft. total. “The writer has looked these culls over very carefully, and there is no doubt but that our customer has been more than fair in what he has taken. However, if you wish, we will have Mr. Tillitson go over the culls, or if your Mr. Holland can spare the time to go with us to look them over the next time he is down here, it will save any unnecessary expense in the matter. “We are certainly surprised that any inspector could or would attempt to ship any such strips for No. 4, as they are so poor and rotten that they will hardly hold together and are absolutely of no value whatever. “We herewith enclose statement and our check to balance account for these two cars. “Yours very truly, “Dennis Lumber Company.” The plaintiff company immediately replied that it would not consent to any loss on the car, and must have settlement in full. Further correspondence was had between the parties, and finally suit was brought to recover the sum of $50.75, the claimed balance due on the two cars in question, the value of the lumber rejected. Suit was started in justice’s court, which resulted in a judgment in favor of the defendant, and on appeal taken to the circuit court the trial judge directed a verdict of no cause of action. It is contended here that the circuit judge erred in holding and instructing the jury that the contract in question was severable, and that the defendant had a right to reject part of the lumber in question and accept the remainder. It is the contention of the plaintiff that the defendant had purchased these two cars of lumber,. of one quality and grade, and as soon as — 703 — the cars arrived the defendant had a reasonable time in which to inspect the same and ascertain if they complied with the requirements of the contract as to quality and grade, and after such examination defendant was obliged to either accept or reject all of the lumber; and if he accepted a part of the lumber, and then used the same, he was obliged to pay the contract price of all of the lumber. Reliance is placed upon the cases of Sisson Lumber, etc., Co. v. Haak, 139 Mich, 383 (102 N. W. 946), and Columbus & Hocking Coal, etc., Co. v. See, 169 Mich. 661 (135 N. W. 920). It is true that it is the rule of law in this State that in an executory contract for the sale of personal property, where there is an implied warranty, the warranty does not survive the acceptance of the goods, and it becomes the duty of the purchaser to make an inspection and reject or pay the contract price, which proposition of law is fully sustained by the two Michigan cases above cited. But the question here is rather whether or not the contract in question is a severable one, and whether or not the defendant could, after inspection, in view of the rule of law here established, reject that part of the lumber which did not meet the specifications. The question of the right of the consignee to reject a portion of the shipment which is below grade or worthless, while accepting the greater part of the shipment, is not involved in the decision of the Sisson Lumber Co. Case, supra, and likewise in the Columbus & Hocking Coal, etc., Co. Case, supra, the entire cargo was of an inferior quality, and the consignee accepted the shipment of coal and attempted to make a settlement upon a reduced price because of the alleged inferior quality of the coal. No Michigan case has been called to our attention, nor have we been able to find such a case, in which the precise question here involved was under consideration. In the case of McFadden v. Wetherbee & Co., 63 — 704 — Mich. 390 (29 N. W. 881), in which there was under consideration a contract for the delivery to a vendee of pine blocks of a specified quality, and the vendee had failed to reject the blocks at the time of delivery, although advised that they were defective, and paid for the same, this court said: “The defendant had the right, at the time of the delivery, to reject any and all blocks not coming up to the standard of the contract; but, if it paid for them at that time, or afterwards, without rejecting any, although complaint was made of their being defective, the defehdant nevertheless lost thereby the right in this suit to plead a breach of the contract as far as the blocks so paid for were concerned; nor would it authorize the rejection and nonacceptance of blocks thereafter to be delivered under the contract, without a showing that the blocks so offered to be delivered were .also defective. No such showing was made.” So in the instant case, if the defendant had taken into possession the rejected lumber and assumed to dispose of it at a less price, as was done in the Columbus & Hocking Coal, etc., Co. Case, supra, there could be no question that under the law in this State the damages thus sustained could not have been recouped in an action to recover for the rejected lumber. But here the defendant moved promptly by notifying the plaintiff the very next day after the inspection of the rejection of the lumber in question. In a similar case in Maryland, Canton Lumber Co. v. Liller, 107 Md. 146 (68 Atl. 500), the court held that the plaintiff had a right to accept lumber which was up to the grade contracted for, and that by so doing it did not accept the part which was below grade. In its opinion the court said: “Unless it measured up to the specifications, it was of no practical value to the plaintiff for the only purpose for which it was ordered, and, not being a dealer equipped for resale, it was of little value to him for any purpose. He was compelled, in order tq perform — 705 — his contract with the railroad company,' to purchase without delay other lumber to replace such as should be rejected under’ proper inspection. Can it be supposed then that it was the intention of either of the parties that if one-half or one-quarter of the lumber passed the inspection, and the remainder was rejected, that the plaintiff could not use the former for the specific purpose for which it was bought, without being required to take also the rejected portion which he could not use? Such a conclusion is as irrational when attributed to the defendant as when attributed to the plaintiff, under all the circumstances of this case. And this construction is supported by the subsequent dealing of the parties with respect to the rejected lumber, which was accepted and removed from Keyser by the defendant. It is true that this alone would not be conclusive, and it would have comparatively little significance if accompanied by a declaration that the acceptance of the rejected lumber was only for the purpose of reducing thereby the damage sustained, but when unexplained, as in this case, the conduct is most significant of the intention of the parties. As illustrative of this view, it was said in Richards v. Shaw, 67 Ill. 222, that the modern rule is that the entirety of a contract of sale is severed by the buyer’s receiving and retaining a part after the seller has refused or failed to deliver the residue of the specific quantity of goods bargained for. “The case of Holmes v. Gregg, 66 N. H. 621 [28 Atl. 17], relied on by the plaintiff, is directly in point, and meets with our full concurrence. . That was a sale of lumber shipped on cars in five lots, three of which were accepted and used by the defendants, and the others, not conforming .to the order in quality, were rejected and piled in their yard, where they remained, subject to the plaintiff’s order. The defendants seasonably informed the plaintiffs of their action, and tendered the price of the accepted lumber, and the court said: ‘Without an express stipulation that the contract was or was not entire, the parties might have understood that it was severable in such a sense that the defendants could accept the lumber that conformed to the contract and reject the rest.’ ” — 706 — We are of the opinion that the trial court was correct in holding that the contract was a severable one, and no error was committed in so charging the jury. In his reasons for directing a verdict the court also stated that thus severing the contract was in accordance with a custom universal among lumber dealers, and it is contended that this was error because, it is claimed, the testimony in this respect falls far short of establishing such a universal custom as to warrant this conclusion on the part of the court. Being of the opinion that the court arrived at a proper conclusion with respect to the other question, and properly directed a verdict for that reason, it is unnecessary for us to determine whether under the facts in this case the testimony was sufficient to justify a conclusion that a universal custom had been established. The judgment is affirmed. Brooke, C. J., and Bird and Moore, JJ., concurred with Kuhn, J.