Caslowitz v. Roosevelt Mills, Inc.

• Decision Date: 17 July 1951
• Citation: 82 A.2d 808,138 Conn. 121
• Court: Connecticut Supreme Court
• Parties: CASLOWITZ v. ROOSEVELT MILLS, Inc. Supreme Court of Errors of Connecticut

Page 808

82 A.2d 808

138 Conn. 121

CASLOWITZ v. ROOSEVELT MILLS, Inc.

Supreme Court of Errors of Connecticut.

July 17, 1951.

Jay E. Rubinow, Manchester, with whom were Leon Podrove, Manchester; and, on the brief, John D. LaBelle, Manchester, for appellant.

Harry L. Nair, Hartford, for appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BALDWIN, Judge.

The complaint in this action alleged the sale and delivery of three cases of 'worsted yarn known as 1/7's-62's, in oil, in skeins, 100% wool' to the defendant and the defendant's failure to pay for them. The answer was a general denial. The court rendered judgment for the plaintiff and the defendant appealed.

The plaintiff is a broker in wools, buying and selling on his own account. The defendant operates a knitting mill in Manchester, Connecticut. They entered into an oral agreement in 1946 by which the plaintiff agreed to sell and the defendant to purchase each month approximately 3000 pounds of wool knitting yarn. Such yarn was in short supply and difficult to get. The plaintiff arranged to obtain it from a spinning mill. Under the terms of the agreement, the yarn was shipped to the Thornton Dye Works in Rhode Island. The shipments began in August, 1946, and continued each month through November, 1946. All the yarn except the three cases was paid for by the defendant. It denied that the three cases were delivered, but the court concluded that the plaintiff had delivered them as claimed. This conclusion must stand unless there was error in the rulings on evidence.

The defendant made various offers of testimony through one of its officers which would tend to contradict the plaintiff's proof of delivery. These offers were excluded on objection upon the ground that they were not admissible under a general denial. The following colloquy ensued. 'Mr. Rubinow: In order that I may understand the nature of your Honor's rulings, I understand your Honor is not going to permit us to show there have been any variations between the---- The Court: Not under these pleadings I am not. Mr. Rubinow:--between the merchandise that was actually received or with respect to the quality or with respect to the quantity or with respect to the grade; that we are not going to be permitted to show any variation between what was billed and what was actually received. The Court: Under these pleadings, no.'

Under the Sales Act, a purchaser is not deemed to have accepted goods delivered to him until he has had a reasonable opportunity to examine them. General Statutes, § 6662. If, after a reasonable time elapses, the purchaser does not reject the goods he is considered to have accepted them. General Statutes § 6663; see Watson v. Bigelow Co., 77 Conn. 124, 130, 58 A. 741. Or, the buyer may accept the goods and give notice that they do not conform to the contract and that he intends to hold the seller responsible for a breach of his agreement. General Statutes § 6664; see Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 552, 129 A. 527. In an action for goods sold and delivered, affirmative proof of notice is required. Such proof is not admissible under a denial of delivery. Delivery and acceptance are conceded, but notice of noncompliance with the contract is set up to avoid payment in full. Evidence, therefore, to establish a defense that the goods do not conform to the contract as to kind or quality is not admissible under a general denial. Bates, Pleading & Practice (4th Ed.) § 2614; Wallace v. Blake, 128 N.Y. 676, 28 N.E. 603; Crawford v. Earl, 38 Wis. 312, 316. And it would follow, in reason, that failure to conform to the agreement as to the number of items or the total weight of the goods sold, if material, could not be shown under a general denial, where the agreement called for the delivery of a specific quantity on any one occasion. The court's ruling was correct so far as it concerned evidence of the kind or quality of goods delivered. But it went beyond that and excluded any offer of testimony as to quantity. The contract called for goods of a certain kind and quality. Upon their delivery it was the duty of the defendant to inspect them within a reasonable time and if they did not conform to the agreement, reject them or hold them and make a claim for damages for nonconformance. The agreement as to quantity stood on an entirely different basis. It called for delivery of the goods over a period of time at the rate of approximately 3000 pounds per month. This contemplated delivery in instalments. The number of cases or the weight of the wool in each instalment was left entirely to the discretion of the plaintiff and his ability to get the goods. There was, therefore, no agreement as to the quantity of each instalment, and the provisions of the Sales Act hereinbefore referred to, which in conjunction with General Statutes, § 6659, place the burden of proof upon the buyer, do not apply in this case.

Facts contradicting the allegations of the complaint may be proved under a general denial. Rudd v. Rudd, 90 Conn. 5, 6, 96 A. 173; Alpert v. Bright, 74 Conn. 614, 51 A. 521; Practice Book, § 104....