Rubenstein v. Grossman-Winfield Millinery Co.

Smith, C. J., delivered the opinion of the court. (After stating the facts as above). Conceding that appellant’s version of this matter is true, appellee’s offer was to sell him the entire “job lot” of hats at three dollars and fifty cents per dozen, and he agreed to accept the entire lot at this price, provided it did not contain more than three or four dozen. This being true, when he received the hats and ascertained that the lot contained more than three or four dozen, the duty devolved upon him of accepting or rejecting the lot as a whole. He could not without appellee’s'consent, accept a part and reject a part. The argument of counsel for appellant is based upon the theory that appellant’s agreement was to purchase three or four dozen hats of the lot in question. Conceding, for the sake of the argument, that if the fact was as thus stated, the case would fall within the rule applied in Hutchins v. Smith Harrison & Co., 64 So. 789, it is clear from the evidence that appellant’s agreement to purchase was as outlined in his testimony hereinbefore set out. It is true that in answer to leading questions propounded to him by- his counsel he stated that he agreed to purchase three or four dozen hats; but he also stated over and over again, that his agreement was as hereinbefore outlined. Affirmed.