Baker v. J. C. Watson Co.

• Decision Date: 26 February 1943
• Docket Number: 7049
• Citation: 134 P.2d 613,64 Idaho 573
• Parties: W. E. BAKER, Respondent, v. J. C. WATSON CO., a corporation, Appellant
• Court: Idaho Supreme Court

134 P.2d 613

64 Idaho 573

W. E. BAKER, Respondent, v. J. C. WATSON CO., a corporation, Appellant

No. 7049

Supreme Court of Idaho

February 26, 1943

Rehearing denied March 22, 1943.

SALES-ACCEPTANCE.

1. If contract for sale of peaches was for U.S. No. 1's, buyer was required to accept only peaches of such grade. (I.C.A sec. 62-307, subds. 1, 2, sec. 62-308.)

2. Where buyer of peaches diverted shipment being made to Laramie, Wyo., to Chicago, Ill., without examining peaches the question as to what was reasonable as to time and place for buyer to examine peaches and notify seller of rejection of them for breach of warranty was for jury. (I.C.A., sec 62-308.)

3. Inspection of goods by buyer is to be made at destination before sale is completed, and a reasonable time therefor is allowed. (I.C.A., sec. 62-308.)

4. The phrase "other legal remedy," as used in section 62-309, providing that acceptance of goods by buyer shall not discharge seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale in absence of express or implied agreement of the parties, includes buyer's right of recission under section 62-507. (I.C.A., secs. 62-309, 62-507.)

5. Where buyer of peaches diverted shipment being made to Laramie, Wyo., to Chicago, Ill., without examining peaches evidence presented question for jury as to whether buyer's failure to examine peaches at Laramie and reject them because of alleged breach of warranty constituted an "acceptance," so as to render buyer liable for contract price. (I.C.A., sec. 62-307, subs. 1, 2; secs. 62-308, 62-309.)

6. Where buyer of peaches promptly notified seller, after examining peaches, that it refused to accept peaches because they did not conform to contract and offered to return them or hold them for seller's disposition, evidence presented question for jury as to whether buyer's subsequent sale of peaches to another amounted to an "acceptance," so as to render buyer liable for contract price. (I.C.A., sec. 62-307, subds. 1, 2; secs. 62-308, 62-309, 62-507 (1), (d), (2, 5).)

Rehearing denied March 22, 1943.

Appeal from the District Court of the Seventh Judicial District, in and for Canyon County. Honorable Thomas E. Buckner, District Judge.

Action to recover the contract price of personal property. Judgment on instructed verdict for plaintiff. Reversed and remanded for new trial.

Reversed and remanded with directions. Costs to appellant.

Geo. H. van de Steeg for appellant.

The delivery of the goods by the seller to a carrier as agent of the buyer will not preclude the buyer from rejecting the goods and rescinding the contract for lack of quality, i.e., nonformity with the contract even though title in the goods has passed. (I. C. A., 62-203, Rule 4 (1); Schiller v. Blyth & Fargo Co., 88 P. 648 (Wyo.); 8 L. R. A. (N. S.) 1167 and note; Pope v. Allis, 6 S.Ct. 69; Alden v. Hart, 37 N.E. 742 (Mass.); Fogel v. Brubaker, 15 A. 682 (Pa.); Williston on Sales (2nd Ed.) Sec. 473; also Sec. 278; Kitterman v. Eagle Pine Co., 257 P. 815, 817.)

Where the contract calls for delivery of five cars of goods and on arrival and inspection the first car is found defective, and likewise on arrival the second car is found similarly defective, the buyer is justified in refusing to go on with the contract without waiting for the arrival of the other three cars. Persistent sending of inferior goods amounts to a repudiation by the seller of the contract, and evidences an intent on his part not to conform with the contract. ( McDonald v. Kansas City Bolt Co., 144 F. 360; 8 L. R. A. (N. S.) 1110; Fallom v. Wright & Colton Co., 82 N.E. 711 (Mass.); Slater v. Hoyle, 2 K. B. 11.)

There being no duty upon the defendant to inspect these peaches at or prior to time of shipment, and it being the duty, under the contract, of the plaintiff to select, pack and ship them, and the defendant not having inspected them before shipment, under the statute the defendant had a reasonable opportunity to examine them to see whether they conformed with the contract. Furthermore, the bills of lading expressly granted this right. The right to inspect implies the right to reject. (Williston on Sales (2nd Ed.), Sec. 484a; Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69; Gerli v. Mistletoe Silk Mills, 76 A. 355.)

Geo. Donart and Dunlap & Dunlap for respondent.

A buyer is deemed to have accepted goods when they have been delivered to him and he does any act in relation to the goods which is inconsistent with the ownership of the seller. (Sec. 62-308, I. C. A.; Gross v. Redfield, 48 Idaho 399; 55 C. J. 497.)

Any of the following acts on the part of the purchaser constitutes acceptance:

a. Removing goods from place of delivery. (55 C. J. 497; Brown v. Price, 268 S.W. 590.)

b. Retaining the bills of lading. (Eagles etc. v. Arkell etc., 135 N. S. 970.)

c. Acceptance of bill of lading and payment of purchase price. ( Case v. Lockridge, 195 S.W. 266; Herbert v. Winter, 39 P. 906.)

d. Resale of the articles by the purchaser. (55 C. J. 443 and 444; Gladium v. Thatcher, 272 P. 340; Central etc. v. Graves, 88 P. 78; Western Forests v. Woodhead, 267 P. 901; Gross v. Redfield, 48 Idaho 399.)

Acceptance by a purchaser after an opportunity to inspect goods constitutes a waiver of defects of quality and such purchaser is bound by his contract of purchase. (Lewiston Milling etc. v. Cardiff, 266 F. 753 (C. C. A.) certiorari denied; 254 U.S. 656; 55 C. J. 443 and 444; Sullivan v. Gird, 197 P. 575; Bullock v. Consumers, 31 P. 367.)

GIVENS, J. Budge, J., and Koelsch, D.J., concur, AILSHIE, J. (Concurring specially. ) HOLDEN, C.J., (Dissenting.)

OPINION

GIVENS, J.

August 25, 1941, respondent, fruit grower at Home, Oregon, sold appellant, of Parma, Idaho, five carloads of peaches at an agreed price. Pursuant to the contract, the peaches were delivered to appellant f.o.b. cars at Home, Oregon, and billed to Laramie, Wyoming. Upon receipt of the bills of lading at appellant's place of business at Parma, Idaho, checks aggregating the contract price of $ 6053.25 were sent in payment thereof. In transit the cars were diverted by appellant from Laramie to LaMantia Bros. Arrigo Co., at Chicago. Upon their arrival there, appellant, contending they did not conform to the grade of peaches allegedly purchased, namely, U.S. No. 1, rescinded the contract, notified respondent thereof, and asked for instructions as to the disposition of the peaches as perishable. Respondents refused to accept rescission and disclaimed further responsibility; whereupon appellant sold the peaches to respondent's account and, after deducting expenses and freight, sent the proceeds ($ 3964.91) to respondent, who refused acceptance. This suit was instituted by respondent to enforce the full purchase price. By the answer appellant urged rescission and tendered the amount of the proceeds into court. Respondent introduced no affirmative evidence challenging appellant's defense of breach of warranty and rescission and secured in his favor an instructed verdict--hence this appeal.

Respondent's complaint contained no statement as to the grade or quality of the peaches. Appellant in its answer alleged as to the said contract of sale "that it was understood and agreed that said peaches were to grade as U.S. No. ones", and that upon their arrival in Chicago they were "found to fail to grade U.S. No. one on account of Curculio injury, split pits and misshapen stock," which defects, according to the evidence, existed in the peaches at the time of their shipment and were not incurred during transit; further, that at that time appellant notified respondent "that the defendant [appellant] could not accept the peaches on account the plaintiff failed to deliver U.S. No. ones as agreed"; and, again, "the plaintiff [respondent] failed, neglected and refused to deliver to the plaintiff f.o.b. the cars at Home, Oregon, or at all, the five cars of peaches of U.S. No. 1 quality or grade agreed to be purchased by the defendant [appellant] from the plaintiff."

Appellant in its brief states:

"The evidence all tended to establish the facts alleged in the said pleadings, and there is very little conflict, in the evidence except as to the one question, namely, whether or not the parties understood and agreed that the contract covered upon U.S. No. 1 peaches, and whether or not defendant resold the peaches to LaMantia Bros. Arrigo Co."

"(c) The evidence shows that the plaintiff failed to fully perform his agreement in that he failed to deliver U.S. No. 1 peaches as agreed and promised; that to load and ship U.S. No. 1 peaches was a primary obligation resting upon the plaintiff and the essence of the whole transaction * * *."

"(f) That the peaches did not grade U.S. No. 1's on account of curculio injury, split pits, etc., defects which occur in growth upon the trees and would be readily apparent in packing."

"If the contract was for the delivery of U.S. No. 1 peaches, and the seller failed to deliver that grade or quality of peaches, there certainly was a breach of promise on his part, and the defendant, as the buyer, even after acceptance, still had the remedy of damages or other legal remedy for such breach."

Respondent in his brief states:

"Its [appellant's] entire defense was predicated upon the contention that when the peaches were purchased there was an agreement amounting to a warranty that they should grade U.S No. 1, and that inspection certificates should be furnished the purchaser.

"The record can be searched from beginning to end and there is no testimony by anyone to the effect that Watson either asked or that Baker ever promised to furnish peaches which would grade U.S. No. 1, particularly on their...