Briggs v. Hilton

• Decision Date: 06 October 1885
• Parties: BRIGGS and others v. HILTON and another.
• Court: New York Court of Appeals Court of Appeals

99 N.Y. 517

3 N.E. 51

BRIGGS and others

v.HILTON and another.¹

Court of Appeals of New York.

Filed October 6, 1885.

This action was to recover the price of goods sold and delivered to the defendants in December, 1880. The allegations of the complaint were not denied, but by way of counter-claim it was averred that in March, 1880, the defendants bought goods of the plaintiffs by samples, which represented sound and merchantable goods suitable for and known as cloakings, and which the plaintiffs agreed should in all respects be equal to the samples; that in August and September they delivered ‘six bales, containing fifty-seven pieces;’ that the bale first received contained ten pieces, which upon examination were found to correspond with the samples, and the defendants, ‘relying upon the plaintiff's agreement and guaranty.’ accepted and paid for the six bales the price agreed upon at the time of purchase, viz., $8,883.50; that, without knowledge of their real condition, they sold and delivered a portion of these goods to their customers, who afterwards returned the same as damaged, and refused to keep or pay for them; that it was then found that none of the godds in the five bales corresponded with the samples, but were imperfect, unmerchantable, and not fit for cloakings, and of no value therefor; that they immediately notified the plaintiffs of the character and condition of the goods, and offered to return, but the plaintiffs refused to receive them. The defendants claimed to have sustained damages by reason of the premises to the amount of $7,269.53.

The plaintiffs, by their reply, admitted the sale and delivery of the goods, and payment therefor, but denied the other averments of the answer. Upon trial of these issues, after evidence had been given by the defendants, the plaintiffs' counsel asked the court to direct a verdict upon the grounds (1) that there was no proof of a warranty of sale by samples; (2) that the goods were accepted and paid for after an opportunity for examination. The motion was denied, and the trial judge submitted the case to the jury, with instructions that the sale was not by sample, inasmuch as the goods in question had no existence at the time of the contract, but were thereafter to be manufactured; but added, if the plaintiffs represented to the defendants that the goods which were to be furnished under the contract would be equal to those exhibited, there was a warranty of quality, and if those furnished were not equal to the specimens exhibited, there was a breach of warranty, and the defendants might be allowed as damages ‘the difference between the value of the goods if they had been as warranted and the actual value of the goods in their defective condition;’ but if there was no warranty, then the plaintiffs would be entitled to recover the amount of their claim. The jury, in answer to a specific question addressed to them, declared that such represention was made, and also found as follows: ‘For defendants for amount of goods claimed to be damaged, at purchased price and $3.25 per yard, same to be returned, less amount of plaintiffs' claim, 1,970 5/8 yards at $3.25, viz., $6,404.53-2,118.00=$4,286.53 for defendants.’ The record shows that thereupon the plaintiffs obtained ‘sixty days' time to make a case, thirty days' stay after entry of judgment,’ and that a ‘motion for new trial’ was ‘denied.’ It also shows that the plaintiffs' counsel unsuccessfully moved ‘to set aside the verdict on the exceptions in the case, and also as against the evidence and the law, and on the ground of excessive damages.’ An order entered May 2d recites a motion upon the minutes of the trial to set aside the verdict as being irregular and improper, and for a new trial on the other grounds above mentioned, and its denial. Judgment was thereafter entered in the usual form reciting the trial of the issues, and the rendition of a verdict for the defendants for the sum of $4,286.53. From the order of May 2d, and from the judgment, the plaintiffs appealed to the general term of the First department, where both were affirmed, and the plaintiffs appeal to this court.

Blumenthal & Hirsch, for appellants, John F. Briggs and others.

Mr. Russell, for respondents, Henry Hilton and another.

DANFORTH, J.

There is no pretense that the plaintiffs were guilty of any fraud. The learned counsel for the defendants disclaimed it upon the trial, and state that the claim was ‘for a breach of warranty.’ The law of the case, as stated without objection by the trial judge, will not allow the sale to be treated as one by sample, and the first point made by the appellant is ‘that there was no evidence of a warranty.’ Of course, if that is so, a verdict should have been entered for the plaintiffs. The appeal papers do not show that the case was settled by the trial judge, nor that they are copies of the record, nor is there any index. These things are required by the statute, the rules or practice of the court, and should be performed to insure certainty, and facilitate reference to the proceedings. Dow v. Darragh, 92 N. Y. 537. Assuming the record to be correct, however, it seems quite apparent that there was evidence upon which the jury could fairly come to the conclusion that an express warranty was the inducement to the purchase. In the transaction, B. represented the defendants, and E., one of the plaintiffs, acted in person. He first called at defendants' store with samples of English cloakings, and learning from B. that he was engaged, left them for examination. He came again, exhibited samples which were ‘sound, perfect, even goods,’ and with those B. was satisfied; he says the weight, width, and style of the goods were talked over, and the price and terms of sale. Asked, ‘Was anything said with reference to the quality of the goods corresponding with the samples?’ He replied, ‘They were to be of similar fabric and similar quality;’ and his attention being again called to the conversation between E. and himself at the time the order was given, he says: ‘The width was stated, the weight was stated, the general characteristics of the goods all through were stated to be equal in every respect to the sample;’ indeed, ‘better in the piece than the sample.’ There is evidence from the plaintiffs in contradiction, and of variance between the present testimony of B. and that given by him on a former trial, and other circumstances which might indicate uncertain memory, or vacillation on his part. But these circumstances were for the jury to consider in determining his credibility. Their answer to the specific question put to them, as well as the general verdict, shows that they relied upon it. The testimony referred to was, however, brought out under the plaintiffs' exception to its admissibility. It appeared that at the time of the bargain the plaintiffs gave to the defendants a writing which, so far as material, is in these words:

‘NEW YORK, March 5, 1880.

‘ Order from Messrs. A. T. Stewart & Co.

‘ To Briggs, Ents & Co.:

‘10 pieces fancy cloakings, 1311, @ $3.20.’

(Followed by other similar items, but of different numbers.)

‘10 pieces fancy cloakings, 1246, @ $3.25.’

(Also followed by similar items, making, in all, ‘120 pcs.’)

‘Delivery 1/2 in June.

‘1/2 in July.

‘BRIGGS, ENTS & CO.’

It was conceded that the goods referred to therein as ‘$3.25’ were the goods in question, and the plaintiffs having put the paper in evidence, ‘objected to any oral testimony tending to set up a warranty with regard to the sale of these goods, on the ground that it contains the contract between the parties in relation to them.’ We think the instrument cannot be so construed. It acknowledges an order for certain articles, a period of delivery, and a price. It is an admission of these things by the party signing it, and not at all the contract of both,-a mere memorandum to show what had been ordered, that one party might know what they were to supply, and the other what they were to receive, and so avoid a double order. It contains no promise nor undertaking. It does not sell the goods, nor does it assume to do so. It was not intended to be a contract. ‘It went to Europe,’ E. Says, ‘to the manufacturer,’ a copy was entered in the plaintiffs' books, and a copy given to the defendants. It afforded information by which each of these parties might be guided, and can at the utmost be considered as the recital of things which had been agreed upon, not as an agreement in itself. Union Trust Co. v. Whiton, 97 N. Y. 172. But even an agreement may be valid although only a part is in writing, and while as to that part the writing is conclusive, parol evidence may be used to show the rest. Chapin v. Dobson, 78 N. Y. 74. We think, therefore, no error was committed by the trial court in receiving the parol testimony, and under it and the verdict of the jury an express warranty as to the quality of the goods agreed to be furnished must be deemed established.

It was proved that the goods were delivered in August and September, and paid for in October and November. The defendants, therefore, had ample opportunity to examine them, and had they done so, it is conceded that the defects now complained of would have been discovered. These circumstances are also relied upon by the plaintiffs as an answer to the defendants' counter-claim. But where a sale is made in good faith, with a warranty of quality as part of the contract, it is sometimes said to be not even voidable, (Pollock, Cont. 422; Voorhees v. Earl, 2 Hill, 288, where the English cases and others are examined;) and at other times, that the vendee is not bound to rescind the contract, but may, if he elects, use the article, and rely upon the warranty. The first part of this proposition was thought by PECKHAM, J., (Day v. Pool, 52 N. Y. 416,) to be regarded as settled in this state; but it is not material here. The defendants stand, if at all, on the last alternative, and are supported...