Bros v. Burrows
Decision Date | 15 January 1910 |
Citation | 145 Iowa 441,124 N.W. 333 |
Parties | BAMBERGER BROS. v. BURROWS. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court of Cedar Rapids; James H. Rothrock, Judge.
Action to recover the purchase price of certain clothing sold to defendant. Defendant admitted the purchase, but pleaded a rescission of the contract, and also interposed a counterclaim for damages. Trial to a jury. Directed verdict for plaintiff, and defendant appeals. Reversed.Barnes & Chamberlain, for appellant.
C. D. Harrison, for appellee.
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: 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 that brought them to Cedar Rapids. The defendant gave the following reason as to why he did not open the children's department: 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:
There was nothing to indicate that plaintiff did not have the goods offered 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:
On August 28th he wrote:
On August 31st plaintiff wrote defendant this letter:
On October 1st defendant wrote plaintiff:
Again on October 4th he wrote:
Plaintiff wrote defendant on October 5th this:
And on the 8th of October they again wrote:
On the same day defendant wrote plaintiff: ...
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Orenstein v. Kahn
... ... This rule, ... therefore, necessarily applies in ascertaining whether a ... contract is divisible, or entire. Bamberger Bros. v ... Burrows, 145 Iowa 441, 453, 124 N.W. 333; 59 Am. St ... Rep. note at page 279; Clark v. West, 137 A.D ... 23, 122 N.Y.S. 380; Shinn, et ... ...
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Steelman v. Camden Trust Co.
...divisible or entire. Orenstein v. Kahn, 13 Del.Ch. 376, 119 A. 444; Shinn v. Bodine, 60 Pa. 182, 100 Am.Dec. 560; Bamberger Bros. v. Burrows, 145 Iowa 441, 453, 124 N.W. 333; Barlow Manufacturing Co. v. Stone, 200 Mass. 158, 86 N.E. 306; Pierson v. Crooks, 115 N.Y. 539, 22 N.E. 349, 12 Am.S......