Nicoll v. Modern Steel Structural Co.

KeewiN, J. The plaintiff contracted with the defendant for a carload of mixed iron consisting of the kind described in the contract “and also a small percentage of foreign material.” . The court found that there was forty per cent, of foreign material, and that under the contract a small percentage of foreign material would be about five per cent, of the entire contents, but further held that the defendant had accepted the carload and was not entitled to any deduction from the contract price. The question presented is whether the defendant, by accepting the shipment, waived its right to any deduction because of the foreign material. It is without dispute that there was about forty per cent, of the carload foreign material, and that only about five per cent, was allowable under the contract, and that the defendant had paid all the carload was reasonably worth. The question, therefore, arises whether notice was seasonably given and was sufficient to justify recoupment from the purchase price because of the forty per cent, 'of foreign material included and not covered by the contract. It is quite clear that the defendant did not rescind the contract in toto, but accepted such part of the material as complied with the contract. The order was a “rush” order. The iron was necessary for immediate use, to the knowledge of plaintiff. It would be a harsh rule that would require the defendant under the circumstances to pay for for [551] eign material included in tbe shipment and not covered by the contract, merely because under pressing necessity it had used the portion of the material covered by the contract. It seems, under the circumstances of the case, that the notice was sufficient to protect the defendant against claim for the foreign material. The letter of October 31st contained complaint about the shipment, and, while it was doubtless sufficient to amount to an acceptance of the iron specified in the contract, it did not amount to an acceptance of the foreign material when read with the letter of November 2d. The letter of November 2d, we think, was seasonably sent under the circumstances, and sufficient to show that the shipment was not received as a compliance with the contract. Hence, in an action on the contract to recover, the court would be justified in making the proper deduction. Locke v. Williamson, 40 Wis. 377; Northern S. Co. v. Wangard, 117 Wis. 624, 94 N. W. 785. It follows from what has been said that the judgment of the court below must be reversed. By the Gourt. — The judgment of the court below is reversed, and the cause remanded with directions to render judgment for the defendant.