Sigerson v. Harker

Scott, J., delivered the opinion of the coast. It can scarcely be necessary to say, that the court committed no error in admitting parol evidence of the contract between the parties, there being no written one. On no pretence can it be said that the open account was a written contract. The instruction given by the court, at its own instance, was liable to exception. Without entering into the question, whether a contract with a warranty, as to quality in a sale of chattels, which contract has been executed, the vendee, for a breach of warranty in a case unaffected with fraud, can return the article, when there has been no stipulation to that effect, and recover the purchase money, or is driven to his action on the warranty, we are of opinion, that on other grounds the instruction cannot be sustained. The charge goes the length of maintaining, that in a sale of goods with warranty, the vendee may take them, select such as will answer the warranty, and return the remainder. In such a case, if there could be a recision of the contract, it would seem that it should be entire. Where there is a sale, with warranty, of a lot of goods, consisting of many articles, it would he manifestly unjust to permit the vendee to select such, as he supposed, corresponded with the warranty, and return the remainder. Such a course, in most cases, [105] would prejudice the sale of the rejected articles. The separation would diminish the probability of a sale of them. A good article may-sell a bad one, and many good ones may frequently carry along with them a few that are indifferent. The evidence shows, that there were barrels returned which were not taken from Shidy & Loomis’ warehouse; and as those at Darrah Sf Pomeroy’s were of good quality and not complained of, we must suppose that some of the returned barrels composed, in part, the lot on the levee. We are aware that there may be sales with warranty, when the articles sold are to be delivered, not at once, but continuously, from time to time. In such cases, the receiving oí a portion of the articles which corresponded with the description, would not compel the vendee to accept others which were deficient in quality, especially in cases where the portion received has been in any way appropriated, or placed in a condition which rendered a return of it inconvenient. So, manifactured articles may be sold to answer a particular purpose. In such cases, the contract is considered executory, and the articles, upon a reasonable trial, within proper time, may be returned, if it is found not to answer the purpose for which it was sold. These principles do not affect the case before us. There is authority for saying, that between vendor and vendee, an order on a depository is a delivery of goods sold, when the order has been delivered to the vendee. The other Judges concurring, the judgment is reversed and the cause remanded.