Isydore Strauss & Son v. National Parlor Furniture Co. , 76 Miss. 343 ( 1898 )

Whitfield, J.,

delivered the opinion of the court.

The testimony given in behalf of the defendants (appellants here) was to the effect that they bought certain designated goods of specified quantity and quality, at specified prices; that the goods received in Montgomery were inferior in quality, being in many instances filled with tow and excelsior, when the contract called for hair; that one set of furniture was so much smaller than the set bought as to be absolutely unmerchantable; that several sets received were never bought, and that these were shipped by plaintiff, in the consignment, mixed with others that had been ordered from plaintiff and other merchants, without tags on the outside, by which separation could have been had in the car before removal to defendants’ warehouse; that another set, which had been bought by Harry Strauss for his own use at $100, was improperly shipped to defendants, billed to them at $125, when the contract was that it was to be charged at $100 to Harry Strauss, and not charged to the firm of Strauss & Son; that on receipt of invoice, and before arrival of goods., objection was made, and, afterwards, notice was promptly given plaintiffs that the goods did not comply with the contract in quantity or quality, and were by said Strauss &vSon rejected, and were held by them subject to plaintiff’s order, and at the plaintiff’s risk; and that certain storage and insurance charges were thereafter reasonably incurred on account of plaintiffs in the preservation of the property till sale thereof by defendants, on account of plaintiffs, some three years thereafter, and after the institution of this suit; and that these charges exceeded the value of the goods bought. On this testimony—in utter and irreconcilable conflict with the testimony of Mr. Demiel, for plaintiffs—the defendants had the right to have the issue arising submitted to the jury, under proper instructions. And, we think, all the instructions asked by defendants, except the first and third, should have been given, substituting “accepted” for “received,” in the ninth instruction.

Where goods of specified quantity and quality are sold to a buyer in a distant state, the carrier is not the agent of the buyer, to( accept or reject the goods, as conforming or not to the contract, but simply as to transportation. The buyer has, under such executory contract, a reasonable time after receipt of goods from the carrier to examine them, and to accept or reject them. Keceipt from the carrier is not acceptance of the goods as complying with the contract in such case. Pierson v. Crooks, 115 N. Y., 548. “And if the goods do not conform to the terms of specification as to qualities—the existence of the qualities in such case being part of the thing sold and essential to its identity, and a condition precedent to the sale, the buyer can notify the seller that he rejects them, that they are at his (the seller’s) risk, and if, within a reasonable time after such notice, the seller does nothing, the buyer may sell them to the best advantage, in good faith, for the seller’s account. It is not necessary that the buyer in an executory contract, depending for validity upon acceptance after examination, should actually return or offer to return the goods, especially where the distance is great, and the. freight charges large. ” Benjamin on Sales (6th ed.), 603 ; Swann v. West, 41 Miss., 104; Stevenson v. Burgin, 49 Pa. St., 46; Leucy v. Monflet, 5 Hurlstone& Norman, 233; Heilbutt v. Hickson, 7 L. R. C. P., 452; Grimoldy v. Wells, 10 L. R. C. P., 394.—Coleridge, J.

In addition to the authorities cited by the learned counsel for appellant, see, also, the very interesting case of Columbian, etc., Co. v. Douglass, 57 Am. St. Rep., 362.

“As a general rule,” says Mr. Benjamin, section 689, “the buyer is entitled to refuse the whole of the goods tendered if they exceed the quantity agreed, and the vendor has no right to insist upon the buyer’s acceptance of all, or upon the buyer’s selecting out of a larger quantity delivered.” And the cases are quite strict upon this point. The reason is, that was not the contract, and a new contract cannot thus be forced upon the buyer. Perry v. Iron Co., 16 R. I., 319.

In making the sale referred to by the buyer, he must do so within a reasonable time after promptly rejecting the goods and notifying the seller of his rejection of them. He can only act as the agent of the seller in making this sale from the “ necessity of the case.” Swann v. West, 41 Miss., 104. And should wait a reasonable time to permit the seller to act for himself, and if the buyer sells, he can reimburse himself only such expenses as were reasonably incurred on account of the seller about the sale and within the time which would be reasonable to wait before .selling. The reasonableness of the time that the buyer should wait, as well as of all charges, the jury must determine from all the evidence. There may be cases in which the unreasonableness of the delay in selling is so manifest as that the court could charge the jury to that effect. We think here the delay in selling was beyond any period that any circuit court would allow to stand if found to be reasonable by a jury. The jury should be instructed to allow only such storage and other expenses as were reasonable in themselves as charges and incurred within a period of time within which the jury believe defendants, under the circumstances of the case, might reasonably have waited before selling. But they are not to allow for the whole time for which defendants here charge. Plaintiffs are not to have the value of their goods eaten up by an unreasonable expense account. Benjamin on Sales, 776; Hambrick v. Wilkins, 65 Miss., 18. The insurance premiums should not be allowed for three years, or for one. The insurance was annual. Such part of the premium as secured insurance for the reasonable time defendants might have waited before sale is all that is chargeable to plaintiffs. Manifestly a year was too long to wait, under the attitude of the parties as disclosed by the correspondence. The first, third and fourth instructions given for plaintiffs should not have been given. The second was correct.

All these issues of fact—whether the defendants had accepted or rejected the goods or had ratified the alleged sale of these goods by their subsequent dealing with them, the reasonableness of the expense charges, what was a reasonable time to wait before selling if the defendants rightfully rejected these goods—were for the jury, under proper directions as to the law.

On the return of the case into the circuit court a count for money had and received can be added.

Judgment reversed, verdict set aside and cause remanded.