Cohen v. Pemberton

• Citation: 2 A. 315,53 Conn. 221
• Court: Supreme Court of Connecticut
• Decision Date: 05 September 1885
• Parties: COHEN v. PEMBERTON.

2 A. 315

53 Conn. 221

COHEN

v. PEMBERTON.

SUPREME COURT OF CONNECTICUT.

Filed September 5, 1885.

Action to recover for goods sold to defendant. Judgment for plaintiff. Defendant appeals.

E. P. Arvine, for defendant, appellant.

E. B. Gager, for plaintiff.

LOOMIS, J. The complainant seeks to recover the price of merchandise, consisting of hats, caps, collars, and gloves, sold and delivered to the defendant pursuant to his written order, which is annexed to the finding as an exhibit. The order classified the goods wanted according to the kind and style, each class occupying a line by itself, on which was given the size, and over it the number desired of that size. At the left the numbers were summed up in fractions of a dozen, and at the extreme right the price of a dozen was given. Take, for example, the first line in the order to be dated in November, which also, in part, involves the matter in dispute: "1/2 doz. hat high college 1 6 7/8, 2 7 1/4, 1 7 1/4, $18.50." The goods were sent in boxes, accompanied by the plaintiff's bill, which, on its face, showed a full compliance with the order. The bill had also a printed heading: "All claims must be made within three clays after receipt of the goods." The defendant kept the goods about a month before he had occasion to open the boxes, and then, for the first time, discovered that some of the caps were not of the size required by his order, and not of the size indicated by the labels thereon; and such goods he returned to the plaintiff, who refused to receive them on the ground that each dozen or fraction of a dozen was an entire contract, which must be rescinded in toto or not at all; and also that the offer to return was not made within a reasonable time; and therefore he claimed to recover for all the goods originally delivered.

The court, as matter of law, in its charge to the jury, adopted the first-mentioned claim of the plaintiff; and as the defendant conceded he did not return all of any one of his said classes, consisting of a dozen or fraction of a dozen, a verdict against him was inevitable.

In thus applying the law which the plaintiff invoked as to the entirety of contracts, the court was doubtless influenced by such propositions as are laid down in Clark v. Baker, 5 Metc. 459, and Mansfield v. Trigg, 113 Mass. 350. It is not our present purpose to discuss the propositions referred to, nor to examine and apply the nice distinctions that obtain as to the divisibility of contracts. In Mansfield v. Trigg, supra, the court, while holding that a sale of a specific number of packages of an article at a given price per package was an entire contract, also held that "the rejection and return of an article of a different kind or description, not answering to the terms of the contract, do not stand upon the ground of this decision, nor does the right to return them depend upon the existence of a warranty."

The defect claimed was not one of quality, but of size in respect to hats and caps. The suggestion is now made that, as the extent of variation did not appear, it might have been trivial; but no such point was made in the court below. The court, in its ruling, assumed that the claimed variation was so substantial that, if it existed as to each article composing the class, the whole might have been returned. The finding shows that the defendant, on his part, distinctly claimed that the variation in size was such that the articles rejected were of no use to him. We shall therefore assume, for the purposes of this discussion, that the variation was substantial, and not trivial and immaterial. We can readily see that it might have been so material as to render the article returned a different thing from that specified in the order, so as to come within the rule last suggested. It must be borne in mind that the identity of a thing, within the meaning of the rule, does not depend on its being of the same class or kind, but rather on its adaptation to the wants and uses of buyers. The local merchant presumably has his regular customers, who require hats and caps of definite sizes, and he makes his order on the wholesale dealer with reference to this and the probable demand. If one of the retailer's customers sends to him for a 7 1/4 hat, and one is sent, so labeled, but which proves to be a 6 3/4, or even a 7, in size, it would at once be conceded that the customer could reject it as a very different thing from what he ordered. A difference which is so material between the retailer and his customer must also be important as between the wholesale and retail merchant.

In Gardner v. Lane, 12 Allen, 44, A. undertook to pay B. a debt by delivering to him 139 barrels of No. 1 mackerel. A. delivered part No. 1 mackerel and 46...