the A. K. Young &Amp; Conant Manufacturing Company v. Edwin E. Wakefield

• Decision Date: 23 October 1876
• Citation: 121 Mass. 91
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: The A. K. Young & Conant Manufacturing Company v. Edwin E. Wakefield

121 Mass. 91

The A. K. Young & Conant Manufacturing Company v. Edwin E. Wakefield

Supreme Court of Massachusetts

October 23, 1876

Hampshire. Contract, on an account annexed, for the price of a lot of water proof cloaks of different dimensions, and one pair of sleeves, all manufactured from rubber cloth. The price of each article and the discount from the gross sum were stated in the account.

The answer alleged a warranty and breach of the warranty, and a rescission of the contract.

At the trial in the Superior Court, before Wilkinson, J., it appeared in evidence that the goods were bought and sold for the defendant's retail trade; that it was one order, and a bill was sent to the defendant at the list price, "15 per cent. and 5 per cent. off." After a former trial a new trial was ordered, on condition that the plaintiff admit a breach of the warranty, which order and condition was accepted. The defendant testified that he received the goods and placed them on sale; that he made sale of one cloak, at the list price, for $ 8.75; that the other goods proved unsalable, and that afterwards he forwarded by express to the plaintiff all the goods but the cloak sold, and remitted $ 7.10 for that one. The plaintiff immediately replied by letter, that it could not take the goods back, and credited the defendant with the money on account. No directions were afterwards given by the defendant respecting the goods, and the plaintiff produced them in evidence in court.

The plaintiff asked the judge to rule and to instruct the jury that there had been no rescission of the contract; but the judge refused so to do, and instructed them that if the goods were sold to the defendant for his retail trade, and it was contemplated by the parties that the defendant should expose the goods for sale in order to ascertain whether they were salable or not, and the cloak not returned was so sold, and the rest of the goods and money were returned seasonably, and the goods were in good condition, and the money was retained by the plaintiff, then there had been a rescission of the contract.

The jury found for the defendant; and the plaintiff alleged exceptions.

Exceptions overruled.

C Delano & J. C. Hammond, for the plaintiff.

H. H Bond, for the defendant.

Devens J. Colt & Morton, JJ., absent.

OPINION

Devens, J.

It was admitted at the trial that there had been a breach of warranty as to all the articles sold by the plaintiff to the defendant. Under the instruction of the court, before the jury could find that there had been a rescission of the contract by the defendant as to those of the articles returned, it was necessary for him not only to show that those goods were returned seasonably and in good condition, but also that the cloak actually sold and not returned was so sold under an agreement that the defendant might expose the goods bought by him to sell in order to ascertain if they were salable, and also that the money for the cloak was retained by the plaintiff when sent to it.

Such...