McClure v. Jefferson

The following opinion was filed March 21, 1893: Cassoday, J. From a careful examination of the record we are convinced that the findings of fact by the referee, confirmed by the trial court, are sustained by the evidence. From these findings it appears, in effect, that all the lumber delivered was graded at the mills at Glenmont, Wis., by an employee of Gillespie & Harper, and that each and every grade or quality thereof was piled by itself on the barge on which it was transported to the docks of the defendants at St. Paul, in such a way as to be readily distinguished upon inspection; and that the quantity of each grade or quality was stated on the shipping bill of each cargo, and each of such shipping bills was forwarded to the defendants for their inspection on or before the barge containing the lumber described therein was unloaded. There seems to be no question but that as each cargo reached said docks and was there unloaded and drawn up into the yards of the defendants and there piled, the title thereto became vested in the defendants, who thereupon became liable for the payment thereof. The contract expressly required prompt payment for each cargo delivered, in cash, when inspected at said docks. The contention is, in effect, that the failure of Gillespie & Harper to furnish a man to participate in such inspection justified the defendants in regrading the lumber, and in reducing the grade thereof by taking lumber from the higher grades mentioned in such shipping bills and putting the same into lower grades, and in rejecting portions thereof as not com [213] ing within any of the terms of the contract, but retaining the same, subject to the payment therefor of its value. Certainly, the defendants were not obliged to receive lumber as complying with the grades mentioned in the shipping bills when such lumber or any portion thereof fell below such grades or failed to comply with the terms of the contract; but to relieve themselves from such obligations the law required them to notify the vendors, at the time of receiving each barge, or within a reasonable time thereafter, that the same was not accepted as complying with the terms of the contract or the shipping bill. As found by the referee and trial court, no such notice was ever given. It is well settled that where, as here, the purchaser of goods delivered on an executory contract, with full knowledge, or with full opportunity for examination and knowledge, of their defects, which are open and apparent upon mere inspection, takes them into his possession and appropriates them to his own use without notifying the vendor at the time of receiving them, or within a reasonable time thereafter, that they are not accepted as fulfilling the contract, he cannot recoup. damages for such defects or failures in an action for the contract price. Locke v. Williamson, 40 Wis. 377; Morehouse v. Comstock, 42 Wis. 626; Olson v. Mayer, 56 Wis. 551; Gill v. Benjamin, 64 Wis. 371. This disposes of the principal question in the case.' It was certainly competent to prove the different kinds, grades, qualities, and quantities of lumber contained in each cargo sent to the defendants, and the shipping bills thereof, and that the defendants made no objection to any of them. The answer expressly'admits that the defendants received 823,860 feet of the lumber so shipped, and this is nearly the amount found by the referee. Besides, the books of Gillespie & Harper were properly verified as re [214] quired by the statute, and hence were properly admitted in evidence. By the Gourt.— The judgment of the circuit court is affirmed. A motion for a rehearing was denied May 28, 1893.