OPINION
DEEMER, C. J.
As
there was a directed verdict for plaintiff, that version of
the case most favorable to defendant must, for the purposes
of this appeal, be accepted as true. Defendant determined to
open a clothing store in the city of Cedar Rapids some time
during the year 1907, and concluded to create a
children's department as a part of the business.
Plaintiffs are juvenile clothing merchants
located in New York City. During the summer of the year 1907
defendant went to New York, visited the plaintiff firm, and
placed an order with them for a certain bill of
children's clothing. This order was in writing, of which
the following is a copy: "Leon J. Bamberger, Irving W.
Bamberger, Edward S. Bamberger. Order No. -- House. July 2,
1907. Bamberger Brothers, 3 and 5 Waverly Place, New York.
Please make for W. H. Burrows, Cedar Rapids, Iowa, ship via
Star Union, in care of C. R. I. & P., on or about Aug. 1st to
10th. Terms, 7-10, 60 Exch. 9-10. Salesman, Van. References:
." The items were given by lot number and quantity, and
the prices affixed were for each lot number; that is, the
items were not affixed to each garment, but the aggregate of
all of the same number. The goods were to be shipped August
1st to 10th. The order was not signed by either of the
parties. Defendant also bought a lot of children's goods
from another merchant. Defendant opened his store in
September of the year 1907; but, for reasons to be hereafter
stated, he did not
open a children's department until a date which is
immaterial to our inquiry.
Some of
the goods which defendant had ordered from plaintiff were
shipped on August 31, 1907, but these did not reach defendant
until about September 10th or 12th, when they were taken to
his storeroom. Other goods were shipped about September 17th,
but they did not reach defendant until September 20th, when
they were received by him and placed in his store. None of
these goods were placed in defendant's stock or offered
for sale, and thereafter, and on or about the 4th day of
October, no more goods being received, defendant returned
them to plaintiff. Plaintiff thereupon reshipped them to
defendant; but defendant refused to receive them, and the
last that is known of them, as shown by the record, is that
they were in the possession of the railway company which
brought them to Cedar Rapids. The defendant gave the
following reason as to why he did not open the
children's department: "The reason that I was not in
a position to open up one that was satisfactory; I had only a
sprinkling of goods, and, in order to compete with the lines
of boys' and children's goods that were here, I
didn't think I could make a creditable showing. September
is the best month in the year for the sale of such clothing.
September, October, and November we consider the three best
months. Up to the 4th day of October I had received but $ 360
worth of the clothing. The clothing shipped by them was not
complete without the balance of the order, and I could not
offer it to as good an advantage as though I had received the
entire bill as I ordered it. The line was incomplete, and
that is the reason I returned it. I paid the freight on the
goods in returning it. The amount was $ 10." Defendant
offered to show the amount of expense he was to in preparing
for the opening of the department, and also the amount of his
expense in going to New York to purchase the clothing, but
the court would not permit him to do so. The reason for
unpacking the goods is thus stated by defendant: "As the
stuff came in we unpacked every case that came. And of course
we expected all of the goods would be along, and so, as the
stuff came in, I unpacked it and put it in the store. When I
returned it, I returned every item I received from
plaintiffs."
There
was nothing to indicate that plaintiff did not have the goods
ordered in stock, and nothing was said about its having to
manufacture or purchase any of them. Some of the goods
shipped were not of the pattern ordered, but defendant is not
complaining of this now. Defendant concluded not to open the
children's department about October 1, 1907. The only
other material testimony in the case is in the form of
letters, which we shall now set out chronologically.
July
29th defendant wrote plaintiff as follows:
"Marshalltown, Iowa, July 29, 1907. Bamberger Bros., New
York. Gentlemen: Owing to delay in getting my
room in shape, will ask that you make shipment on August
20th. This will give you plenty of time to make complete
shipment on that date. Very truly, W. H. Burrows."
On
August 28th he wrote: "Cedar Rapids, Iowa, August 28th,
1907. Bamberger Bros., N. Y. Gentlemen: I would like to know
by return mail what you are going to do about the goods on
order for me and which you promised to have ready August 10th
sure. Very truly, W. H. Burrows."
On
August 31st plaintiff wrote defendant this letter: "New
York, August 31, 1907. Messrs. W. H. Burrows & Co., Cedar
Rapids, Iowa. Copy. Gentlemen: Answering your esteemed favor
of August 28th, we beg leave to say that your goods will be
shipped today and inclose you bill for same. Hoping these
goods will please you, and to be favored with many reorders,
we remain, Yours very truly, Bamberger Bros. Dict. E. S.
B."
On
October 1st defendant wrote plaintiff: "Cedar Rapids,
Iowa, October 1, 1907. Messrs. Bamberger Bros., New York, N.
Y. Gentlemen: The boys' and children's clothing that
I ordered from other houses at the time I placed my order
with you for fall delivery have disappointed me in shipment
and because of the delay I am not in a position to open up a
satisfactory children's department, as when I do open
that department I want it to be among the best. I write you
to ask you if you would relieve me of the goods which you
have shipped me and I assure you I will appreciate it if you
will allow me to return them to you. I feel that this is the
best thing for me to do this season if I can arrange matters
satisfactorily with you. I will not try to do anything on the
children's stuff this fall and get in shape for a good
department in the spring. Now I do not desire to force this
upon you, but if you will favor us with the return from us
with the exception of the children's overcoats which you
made especially for me, I assure you that it
will not be forgotten and for the spring will promise to do
more than enough business to recompense you for any annoyance
that this may cause you. I have just opened up my store and
things have opened up decidedly satisfactory for me and the
prospects are very flattering, but I realize that if I were
to do business with a handful of children's clothing it
would be worse than if I did not use that department at all.
Thanking you in advance for your decision in this matter
which if favorable I assure you would be appreciated by me, I
remain, Yours very truly, W. H. Burrows."
Again
on October 4th he wrote: "Cedar Rapids, Iowa, October 4,
1907. Messrs. Bamberger Bros., N. Y. Gentlemen: I have
returned to you today the small amount of children's
clothing you sent me. I am indeed anxious that this should in
every way be pleasant to you, but I find owing to the
unsatisfactory deliveries on children's clothing
this season that it would be impossible for me to open up a
satisfactory children's department and for that reason
have decided to entirely dispense with the boys' and
children's departments this fall, and for spring to put
in an entire juvenile and boys' department, at which time
I shall have the entire upstairs over my present quarters and
the bank next to me; and I promise you for your consideration
in this matter to give you my juvenile and boys'
business. I will be in the market early for my stock next
season so that I can get the goods and deliveries in time. I
want you to appreciate my position in this matter and do the
best you can by me as I am indeed anxious that our business
relations be pleasant to you. Thanking you in advance for
your consideration in this matter, I am, Indeed sincerely, W.
H. Burrows."
Plaintiff
wrote defendant on October 5th this: "New York, October
5, 1907. Mr. W. H. Burrows, Cedar Rapids, Iowa. Copy. Dear
Sir: We have your esteemed favor of the 1st
inst., and same is noted. All your goods were made special
and as per your instructions and wires we rushed forward and
shipped ahead of other people's goods. We are extremely
anxious to merit your business, but regret we are in no
position to accept the return of these goods as we are
getting ready for next spring. We regret that the other
manufacturers did not ship on time, but this is no fault of
ours, and while we are willing to extend the time of payment,
if you so desire, we regret we are unable to accept the
return of these goods. With kind regards, and always glad to
serve you, we remain, Yours very truly, Bamberger Bros. Dict.
E. S. B."
And on
the 8th of October they again wrote: "New York, October
8th, 1907. Mr. W. H. Burrows, Cedar Rapids, Iowa. Copy. Dear
Sirs: Yours of the 4th inst. to hand and noted. Our previous
letter of October 5th fully explained our position as we are
unable to accept the return of these goods. They will not be
taken from the depot and will stay there at your...
