Eaton v. Blackburn

• Decision Date: 21 July 1908
• Citation: 96 P. 870,52 Or. 300
• Parties: EATON v. BLACKBURN et al.
• Court: Oregon Supreme Court

96 P. 870

52 Or. 300

EATON v. BLACKBURN et al.

Supreme Court of Oregon

July 21, 1908

Appeal from Circuit Court, Baker County; William Smith, Judge.

Action by A.E. Eaton against Edward Blackburn and another, partners as Blackburn & Breck. From a judgment for defendants plaintiff appeals. Affirmed.

See 88 P. 303.

This is an action to recover the purchase price of two car loads of hay. The defense is that the hay, which plaintiff agreed to sell and deliver to defendants, was to be "good, number one, merchantable hay," and that furnished was not of this quality, for which reason it was rejected. The defendants are commission merchants, residing and doing business in Baker City. Plaintiff resides in Union county some miles distant from Baker. In March, 1906, he contracted and agreed to sell to defendants five car loads of hay, for use in their business, at $11.50 per ton, f.o.b. cars, Nodine Spur, Union county. The contract was made at Baker City, and defendants were to pay the freight from place of shipment to that point, but nothing was said about the time or place of payment, or the inspection or acceptance of the hay. Shortly after making the contract, plaintiff loaded two cars with hay at Nodine Spur, and the same were carried by the railroad company to Baker, reaching there Sunday morning, March 25th. On the following day defendants, before they had examined or inspected the hay, made some effort to sell it, but were unable to do so. On the morning of the 27th, in company with Abercrombie--a prospective purchaser--Mr. Breck, one of defendants, opened the cars, in which the hay had been shipped, and examined it, but Abercrombie was unwilling to purchase. In the afternoon of the same day they made a further and more careful examination, and Breck, claiming that the hay was not of the kind and quality contracted for refused to accept it, and so notified plaintiff and the railroad company on the following morning. At the time Breck and Abercrombie were examining the hay on the afternoon of the 27th, two bales were taken out of one of the cars for inspection, and on the same afternoon one of defendants' employés, without their knowledge or authority, sold one of such bales to a shipper of stock passing through Baker City and paid the money over to defendants. As soon as they learned of the sale, they repudiated the act of their employé, and directed him to return to the car another bale equally as good, or better, than the one sold by him. At the time of the trial it was contended by plaintiff that, under the contract between him and defendants, it was the duty of defendants to inspect and accept or reject the hay at Nodine Spur, where it was to be loaded on the cars; and, if they neglected to do so, they were bound to receive such hay as was actually shipped, and rely upon a claim of damages for breach of contract, if it was of inferior kind and quality, but, if this was not so, defendants' conduct, after the hay reached Baker City, was such as to amount, in law, to an acceptance thereof. The court instructed the jury that if the hay, delivered on the cars by plaintiff at Nodine Spur, was substantially the kind and quality called for by the contract, it would amount to a full and complete performance, and enable him to recover the contract price, whether the hay was subsequently accepted by defendants or not; and, if the hay was different or inferior to that which plaintiff agreed to sell, notwithstanding which the defendants accepted it, or did something amounting to an acceptance, they could not thereafter repudiate their liability by returning or tendering a return of the hay, but that defendants had a reasonable time in which to inspect the hay after it reached Baker City, and if it was, in fact, of an inferior quality, and not according to the contract, they could reject it, and refuse to accept or pay for it, and if they did so, plaintiff could not recover in this action. The court also held that the question as to whether defendants accepted the hay after it reached Baker was one of fact, to be determined by the jury under proper instructions from the court, which were given accordingly. The cause was tried before a jury, and a verdict rendered in favor of defendants. From the judgment subsequently rendered thereon, this appeal is taken. The errors assigned are in the giving and refusing of certain instructions and admission of testimony.

Lomax & Anderson, for appellant.

John L. Rand and Samuel White, for respondents.

BEAN C.J. (after stating the facts as above).

The principal point relied upon by plaintiff for a reversal of the judgment is the ruling of the court that, under the contract for the sale of hay in question, defendants had a right to inspect it after it reached Baker City, and, if it did not conform to the contract, to refuse to accept or pay for it. The argument is that the place of inspection and acceptance or rejection was at Nodine Spur, where the hay was to be delivered by the plaintiff, f.o.b. cars; and, if defendants neglected to exercise the right of inspection at that time and place, they were liable for the value of the hay so delivered. But we do not so find the law. No place or time of payment or of inspection or acceptance was stipulated in the contract. All parties concur in this point. The contract was made between plaintiff and defendant Breck. These gentlemen both say that Breck met plaintiff at the depot at Baker City, and inquired of him if he had any hay for sale, and that he (plaintiff) said he had; that the price was $11.50 per ton, f.o.b. cars at Nodine Spur, and that Breck said he would take five car loads at that price, and under the conditions named. The only difference between the witnesses is in reference to the terms of the contract regarding the kind and quality of hay to be delivered, and that matter is concluded by the verdict of the jury. Some stress is laid, by counsel for plaintiff, upon a statement by Mr. Breck, on cross-examination, that he would have had the privilege of examining the hay if he had gone down to Nodine Spur, but this was merely the opinion of the witness, and was not part of the contract. Indeed, when asked as to whether he was to be present at Nodine Spur to receive the hay for shipment, he replied: "Mr. Eaton knew it was impossible for me to be there. There was no understanding of that kind at all." So that it is manifest from the testimony that there was no time or place of inspection or acceptance agreed upon by the parties, or for the payment of the purchase price. The payment, therefore, became due and payable on a complete delivery, and there could be no such delivery without an opportunity for inspection. Under an executory contract for the future sale and delivery of goods of a specified quality, the quality is a part of the description, and the seller is bound to furnish goods actually complying with such description. If he tenders articles of inferior quality, the vendee is not bound to accept them; and, unless he does so, he is not liable therefor. This necessarily gives...