Barton v. Kane , 18 Wis. 262 ( 1864 )

By the Court,

DixoN, C. J.

We are of opinion that the judgment of nonsuit must be set aside and a new trial granted in this case. The question is, whether there was any evidence on which the jury could be justified in finding that Kane received the goods and actually accepted the same, so as to render him liable as buyer. The case stands differently from what it stood when before this court at the January term, 1863. At that time it appeared from a statement of the defendant received in evidence before the plaintiff rested his cause, that the defendant, in a letter of the 29th of December, in reply to the plaintiff’s letter of the 19th inclosing the invoice, notified the plaintiff of his refusal to accept the cigars, “ that the cigars were not such as were ordered, and that they were subject to the plaintiff’s order,” &c. As the case now stands, it appears that the defendant received the cigars and the invoice, and only that he acknowledged the receipt by letter. There is no evidence of a refusal or notice of refusal on any ground. On the contrary, the plain inference derived from the fact of acknowledgment is, that the defendant accepted the goods regardless of quantity or quality. Under these circumstances we have no hesitation in saying that the nonsuit was erroneous, and that a new trial ought to be granted.

In the former opinion we expressed some doubt as to whether it is necessary for the buyer, when the seller sends more goods than are ordered, to notify the seller of his refusal to accept on that ground. It may be that what we then said is open to doubt. Counsel refers us to the case of Corning v. Colt, 5 Wend., 253, and 2 Parsons on Contracts, 326. Mr. Parsons lays down the rule in these words: “If the buyer accepts and actually receives the goods with a knowledge of their deficiency in quality or quantity, and without objection, he waives all right of future objection on this ground.” In other words, proof of >the buyer’s neglect to give notice of bis refusal becomes evidence of his acceptance in fact. And in Corning v. Colt the same doctrine seems to have been sustained. It was held, if the goods actually come to the possession of the buyer, or if a bill specifying the quantity and description be actually received by him, that he will be liable, unless he gives notice to the seller of his refusal to accept on account of the deficiency. Perhaps these authorities ought to govern our action when the question is presented. It is certainly very important that uniform rules in commercial transactions should prevail in the different states. But the question was not in strictness involved in the former decision; neither is it now. What we said was merely intended as the expression of a doubt. We did not then intend to conclude ourselves upon the point, and do not at this time. We leave it to be decided when it more fairly arises.

Judgment reversed, and a new trial awarded.