Hutchins v. Smith-Harrison

Cook, J., delivered the opinion of the court. According to the testimony of appellant, he ordered of appellee certain merchandise, but when the shipment arrived he discovered that appellee had not only shipped to him the goods ordered by him, but had shipped other goods not ordered. After discovering this fact, appellant says, he returned the goods not ordered and retained the goods ordered, and is ready to pay for the agreed value of the goods retained. Appellee refused to accept the goods returned, and instituted an action for the value of the entire bill shipped, claiming that appellant ordered the goods shipped; that appellant was not authorized to accept a part of the goods and return a part, even though he had not ordered the part returned. The court below accepted appellee’s view of the law, and directed the jury to find for appellee, plaintiff below, for the full amount sued for. The case as made by appellant is this: The buyer purchased and appellee agreed to sell certain kinds of goods, and the seller shipped the goods actually contracted for; but the seller mixed with the goods bought other goods not bought. When this was discovered,, the buyer retained the goods the shipper contracted to deliver and rejected the goods he did not buy. Where the .seller de [860] livers to the buyer the goods he contracted to sell, mixed with goods of a different description, not included in the contract, the buyer may accept the goods which are in accordance with the contract and reject the rest. The contract actually made is binding on both parties, and the seller cannot defeat the buyer’s rights to the goo'ds bought by him by mingling with them other goods of a different description. Principles of Sales (Benjamin) rule 33, p. 148; Cohen v. Pemberton, 53 Conn. 221, 2 Atl. 315, 5 Atl. 682, 55 Am. Rep. 101; Rodman v. Guilford, 112 Mass. 405. The case of Ormond v. Henderson, 77 Miss. 34, 24 So. 170, is cited to support- appellee’s contention that the buyer was bound to pay for the entire shipment, because of his acceptance of a part. We do not think that case is in conflict with the views above expressed. The facts of that case are entirely different from the defense made in this case. Ormond v. Henderson was, we think, correctly decided, whether the reasons for the decision given in the opinion of the court are sound or not. Reversed mid remanded.