Keeler v. Paulos Manufacturing Co.

Appellees sued to recover the contract price for certain bombs and firing canes, popular with young America on certain holiday occasions, together with ammunition for the same, that had been theretofore ordered by the firm of which appellant is the surviving member. When tendered in Gainesville, the firm refused to receive the property mentioned on the ground that the order therefor had been countermanded. The court, however, found that the order was not subject to countermand, and rendered judgment for appellee for the price of the bombs and ammunition therefor, but denied a recovery for the price of the canes and cane ammunition, for the reason that the canes were not such as called for by the contract. The court, who filed his conclusions of fact and law, also further found, that when the goods were tendered, "they were contained in three boxes, but that the canes were contained in one box and the ammunition for the canes were contained in one of the other boxes with the Aerial Bombs." Appellee has filed no cross assignment to the finding we have quoted, nor does appellee in like manner contest the court's finding that the canes were defective and did not equal the sample exhibited at the time the order for them was made. This being true, the findings are conclusive, and the court erred in holding that appellant was bound to receive and pay for the bombs.

The sale being by sample, there was an implied warranty on the part of the appellee company that the canes should be equal to the sample, and notwithstanding the order provided for delivery f. o. b. cars at appellee's place of business in New Jersey, appellant had the right upon tender of the goods at Gainesville, to examine the same and to reject them if not in accord with the implied warranty. (Tiedman on Sales, sec. 114.) And we think, in this case, the right of rejection extended to the whole of the goods tendered. The ammunition for the canes was valueless without effective canes. Canes, bombs and ammunition were all included in one order, the price charged therefore aggregated the sum for which the suit was instituted, and we do not think appellant was required to separate the merchantable articles from those that were not, and to undertake the solution of questions of abatement in cost of drayage, freights, etc., or of prices charged, that would in such case naturally arise. Mr. Tiedman on Sales (sec. 113), in speaking of the duty of acceptance, says: "The buyer is not obliged to accept the goods, unless they have been tendered to him exactly in accordance with the terms of the contract. In other words, the requirements of the law as to delivery, must be observed by the seller, before the buyer is obliged to accept. If, for example, the seller has failed to make the proper delivery, either because he has made it at an unreasonable time of the day, or he has failed to deliver the exact quantity of goods, neither more nor less, nor mixed with other goods, or he has delivered less than the required quantity, or has not delivered in the form called for by the contract of sale; in every such case the buyer may refuse to accept the goods, and relieve himself from all liability by rejecting them and notifying the vendor of the rejection. The buyer is of course not obliged to accept the goods unless he has an opportunity to inspect and examine them." In note 3 to the section stated the author says: "The buyer is not obliged to select the goods he ordered from others shipped in the same package without being ordered." Citing a number of cases not available to us.

It can make no difference, we think, that appellant assigned a right to reject that the court finds did not exist, or that appellant did not make an examination before refusing to receive the goods. In order to entitle it to a recovery, the burden was primarily upon the appellee company to show a compliance on its part with the contract of sale and a wrongful breach by appellant. This included a necessity for proof that the goods tendered were substantially such as ordered, and under the court's findings it is clear that there was a substantial failure in this respect. It is also clear that appellant had reason for believing that the canes ordered, were practically worthless, and that had examination at the time of the tender been made, a refusal to accept would certainly have followed.

We accordingly approve and adopt the court's findings of fact, but conclude, as a matter of law arising thereon, that the judgment should have been for appellant. The judgment below, is therefore reversed, and here rendered in appellant's favor.

Reversed and rendered.