Woodward v. Libby , 58 Me. 42 ( 1870 )

Appleton, C. J.

On 24th June, 1869, the defendant by letter requested the plaintiffs to send him, “ by steamer, fifteen barrels good medium beans,” which the plaintiff forwarded, as requested, on the next day, and they were received by the defendant on 26th June. Upon proof of these facts the plaintiffs were entitled to recover, no objection being made to their quality.

The defense was, that on the preceding 12th May the defendant had purchased sixty-six barrels of beans, of which fifteen were dedefective ; but he had not given the plaintiffs notice of their quality -until after the beans in controversy had been received by him. Upon their being received, on 26th June, he wrote plaintiffs, complaining for the first time of the worthlessness of fifteen barrels of those purchased in May, and claiming to hold the fifteen barrels received that morning, to replace the fifteen barrels of poor beans, which he returned that day, but which the plaintiffs testified had not been received in the following October, when this suit was commenced.

It is manifest, from the dates of the correspondence, that the beans, to recover the payment of which this suit is brought, were not sent by the plaintiffs to replace the poor beans, purchased in the preceding May, for the defendant still retained those, without having made any complaint, or given any notice of their defectiveness. They were sent in pursuance of an order, and when received, the sale was perfected.

To authorize the defendant to hold the beans last sent, to replace the defective ones on hand, there must have been a contract of exchange. But the defendant proposed no such contract, and the plaintiffs knew of no complaint on the defendant’s part, or any wish that he would send good beans to replace the'alleged bad ones. There was no account in set-off, if such account would have availed the defendant. This is not a case for recoupment, for there is nothing from which to recoup, and the bargains of 12th May, and of June 24th were as distinct, though relating to the same kind of produce, as if they had been for different articles of merchandise.

If the defendant has a claim against the plaintiffs, arising out of the sale of May 12th, his remedy is by suit, but it is no defense to this action that the plaintiffs may have violated some other and different contract made long prior. The consent of the parties to an exchange is as necessary as to a sale. The instruction that the defendant had a right to appropriate the beans sold on 24th June, in satisfaction of his outstanding claim for damages, without the plaintiff’s assent, was erroneous.

Exceptions sustained.

Cutting, Kent, Barrows, Danforth, and Tapley, JJ., concurred.