J. Lischkoff, Inc. v. Cincinnati Bargain House

Smith, C. J., delivered the opinion of the court. The appellee, a corporation engaged in the wholesale mercantile business in Cincinnati, Ohio, sold to the ap [456] pellant, a corporation engaged in the retail mercantile business in Meridian, Miss., a bill of goods for which the appellant agreed to pay the sum of five hundred and ninety-one dollars and forty cents. The appellant gave to the appellee its check for fifty dollars on a bank in Meridian in part payment for the goods and agreed to pay the balance due thereon when the goods should be delivered to it at Meridiaii. The appellee shipped the goods to Meridian consigned to its own order with a notation on the bill of lading to notify the appellant, and attached the bill of lading to a check on the appellant for the balance due on the goods, and forwarded it to a Meridian bank for collection. The bank on which the' fifty dollar check was drawn declined to pay it, and it was returned to the appellee. The appellant also declined .to pay the check drawn on it for the balance due on the goods and to take up the bill of lading. After vainly endeavoring to induce the appellant to comply with the contract, the appellee directed the carrier to return the goods to it at Cincinnati, where, shortly after they were received by the appellee, they were sold by it without notice to the appellant at the best price obtainable therefor, which according to the evidence was the current market price at that place. This suit was then instituted by the appellee to recover the freight charges paid by it to the carrier for transporting the goods to and from Meridian, and for the difference between the contract price therefor and the amount for which the goods were resold by the appellee. The appellee sought, but was not permitted by the court below, to prove that there was a market for goods of the character of these here in question at Meridian, and that the market value thereof at Meridian was greater than the price at which they were resold in Cincinnati by the appellee. The appellant’s complaint is that the goods were sold without notice to it of the appellee’s intention so to do and at a place other than that of delivery. [457] It will not be necessary for ns to determine whether the appellee should have given the appellant notice of its intention to resell the goods for the reason that the resale thereof, for aught that appears in the record, should have been made at Meridian. There is no hard and fast rule with respect to the place at which goods refused by a purchaser should be resold by the seller in the event he desires to do so. The seller is entitled to the exercise of some discretion in selecting the place, having regard “for the character of the goods and the times, circumstances and places that regulate and control their price.” 2 Mechem on Sales, section 1638; Bonds v. Lipton Co., 85 Miss. 209, 37 So. 805. ‘ ‘ Under ordinary conditions, however, where the goods are at the place of delivery at the time the purchaser refuses to receive them, the vendor is entitled to and should resell them on the former’s account at that place.” See note to White Walnut Coal Co. v. Crescent Coal & M. Co., 42 L. R. A. (N. S.) 685, 686, and authorities there cited. The evidence not only fails to disclose any reason for the resale of the goods at a place other than Meridian, but the evidence offered by the appellant as to the market therefor at Meridian, which the court below erroneously excluded, would, if true, have negatived any reason for reselling the goods elsewhere. Reversed and remanded.