Silberman v. Caplan

The trial court held that the plaintiff was bound to take back the plumbers' supplies reshipped to him on May 7th, 1917, and give credit therefor, and rendered judgment for a small balance still remaining due on the consolidated account. The question arising on the appeal is whether the court erred in holding that the defendant was entitled to credit for the returned plumbers' supplies.

The contract for the sale of these goods is not in writing, and from the findings of fact it appears that the contract was in the nature of a contract of sale or return, under which the general property in the goods sold passed to the buyer, subject to a right to return "the whole or any part of the merchandise thus sold by the plaintiff, that he (the defendant) could not sell or use, and to pay for such of the goods that [as] should be retained by him." No time was fixed within which the right of return was to be exercised, and the court finds that the goods in question were returned within a reasonable time.

This statement of the case gives the buyer the same right of return which he would have had under subsection (d) of § 69 of the Sales Act (General Statutes, § 4735), if the seller had warranted the goods to be salable in the New Haven market, in which case the warranty would have continued in force for a reasonable time whether the goods were paid for or not. The real question seems to be whether, because of the form of the contract, the right of return was lost by paying for the goods before a reasonable time had elapsed for ascertaining whether or not they were returnable, in order to take the benefit of a discount offered by the terms of the contract.

No exception on the ground that it is not supported by evidence, is taken to the finding that the payment was not intended as an election to keep the goods, and this finding puts an end to any claim that the defendant thereby voluntarily elected to keep the goods, or waived the right to return them.

It is said that the plaintiff, being ignorant of the defendant's motives, had a right to suppose that the transaction was closed by the payment, and that it is inequitable to reopen it. But the finding that the plaintiff began to request payment in full before some of the goods were received by the defendant, although he knew that it would take some time for an inexperienced salesman to find out whether the selected line of plumbers' supplies was salable in the New Haven market, indicates that the plaintiff did not then suppose that prompt payment was inconsistent with a subsequent opportunity to test their salability.

The doctrine of voluntary payment does not apply because the rights of the parties are governed by the contract; and the claim that the defendant is concluded because he accepted the goods is irrelevant because, under the contract, the right to return the goods if found unsalable, could not arise until after the general property had passed to the buyer.

The contract is not a simple contract of sale or return at the election of the buyer. He had no right to return the goods without first taking a reasonable time to test their salability, and the court has found that two months was a reasonable time to take for that purpose. It seems to follow that the parties must have contemplated the possibility that the defendant might pay for the goods, in order to take the benefit of the 2% discount for cash within thirty days, before it could reasonably be ascertained whether they were returnable.

There is no error.

In this opinion the other judges concurred.