Vodrey Pottery Co. v. H. E. Horne Co. ( 1903 )

Dodge, J.

We deem it clear that the trial court was right in holding that the only existing contract between the parties was that created by their letters after the crockery had been received and examined by defendant and rejected as not satisfying the earlier executory contract of purchase. The contract so made by these letters not only contained nothing of express nor implied warranty, but, on the contrary, did contain an express agreement on defendant’s part to take its own chances' as to the quality of the goods. Defendant’s managing officer had at the time inspected them, discovered that they were defective to some extent, and anticipated that the defects would increase with time and further examination, and so declares expressly in his letter proposing to purchasé them at a specified price — some $300 less than that originally agreed upon. Erom this view unavoidably results the conclusion that plaintiff is entitled to recover the price fixed in this contract, and that the counterclaim based upon breach of warranty has no foundation, for there was no warranty. Hence the court correctly directed a verdict in favor of the plaintiff for $250 and interest, the concededly unpaid balance of the contract price.

Defendant devotes considerable space to discussion of the law of accord and satisfaction, which is beside the issue. The letters malee plain that, upon examination of the goods, defendant rejected them and refused to receive them under the contract made about December 31, 1900. To this plaintiff assented, after first proposing a method of adjustment whereby the undamaged goods should be accepted under the original bargain. Thus the contract of December 31st was, by mutual consent, rescinded, and the goods were the plaintiff’s. The letters of January 21st and 23d constitute a new contract of sale, and upon that contract this action is brought and the complaint is based.

2. Error is assigned on the refusal by the court of an offer, made first when defendant’s manager, H. E. Horne, was on the stand, and amplified in writing after verdict, by consent of court, to show that defendant was induced by misrepresentations contained in a certain letter of January 17, 1901, from plaintiff to it, to believe that only a very small portion of the goods was subject to the defects it had. found to exist in some of them; hence, that the so-called settlement, or, as we have termed it above, the second contract of purchase made after the rejection of the goods as not satisfying the first purchase, should be deemed rescinded. It is notable that there is no allegation in defendant’s answer that it was induced to enter into this contract by fraud, and no issue in the pleadings warranting the admission of the evidence so tendered; but, apart from this consideration, an examination of the letter of January 17th satisfies us that there is contained therein no material statement of fact as upon the knowledge of the plaintiff, upon which the defendant could have relied and been thereby induced into making the compromise. It contains, at most, mere expressions of opinion, with the reasons therefor. It does not assert absence of defects except in goods from two imperfect kilns, as defendant contends, but merely the opinion that the crazage then discovered might be due to those kilns, because the damaged sample sent plaintiff appeared as if crazed in the kiln. Many other facts such as counsel now suggests as probably existing obviously could not Have been witbin tbe knowledge of tbe witness by wbom proof was offered to be made, as tbe court could see at the time of tbe offer. Apart from this, however, defendant’s letter following that of January lJtb declares disbelief in tbe conditions now claimed to have been believed, and made such disbelief the ground for repudiating plaintiff’s offer of adjustment and insisting on repudiation of tbe goods. ETo error was committed in refusing this offer of proof.

3. An offer was made of oral testimony to tbe effect that a certain small quantity of tbe original consignment was not included in tbe so-called compromise. Tbe letters themselves are sufficiently plain to assure tbe construction that tbe new sale and purchase covered tbe same and all tbe goods shipped and received, and tbe parol evidence tending to modify tbe written contract was properly rejected.

We find no error in tbe record.

By the Oourt. — Judgment affirmed.,