Farrington v. Smith

• Decision Date: 08 November 1889
• Citation: 43 N.W. 927,77 Mich. 550
• Court: Michigan Supreme Court
• Parties: FARRINGTON ET AL. v. SMITH.

43 N.W. 927

77 Mich. 550

FARRINGTON ET AL. v. SMITH.

Supreme Court of Michigan

November 8, 1889

Appeal from circuit court, Wayne county.

Action by Harvey Farrington and others against Barclay Smith, to recover the price of goods sold. Judgment for defendant, and plaintiffs appeal.

Frank F. Williams, (Chas. K. Latham, of counsel,) for appellants.

James H. Brewster, for appellee.

CAMPBELL J.

In November, 1886, plaintiffs, a tea firm of New York, through Mr. Schuyler, their Detroit agent, received and filled an order from defendant for two kinds of Japan tea, in half chests; 5 half chests and 12 boxes, of 20 pounds each, of tea billed as Formosa, of four different prices, ranging from 25 to 35 cents a pound; 4 half chests of Congon, at 22 and 30 cents a pound; and 11 boxes of Congon, of 20 pounds each, at 24 and 32 cents a pound. The whole bill amounted to $359.21 due March 24, 1887. The Japan tea amounted to $84. The tea was at once shipped, and reached Detroit in a few days. When the draft was drawn for payment at the end of four months defendant refused to pay it by a letter which stated he had still on hand almost the entire bill; that he had informed plaintiff's agent twice in regard to the goods, more especially the English breakfast and Oolong, that they did not come up to what they were represented to be; that he had had both English breakfast and Oolong returned as not fit to steep. He asked for advice what to do. This letter makes no reference to Japan tea, and makes no discrimination among the other kinds at all definite. It makes no offer to pay for anything. The bill contained a printed notice that all claims for damages or deduction were to be made immediately after receipt of goods. On the trial most of the material facts were disputed. Defendant claimed that the order was given on samples which were represented by Schuyler, the agent, to correspond with those in defendant's stock on sale. He also claims that within a very short time after the goods arrived he sold a 20-pound box to one Alexander, and another to one Thorn, which were returned as not up to the standard. The testimony is not very definite in identifying these. Defendant sold all the Japan tea without complaint. He says more or less complaint was made about some other tea. He further testifies that, after being fully informed about the complaints of quality, and after he claims to have notified Schuyler of the difficulty, he sold a part of the tea to customers.

Bearing in mind the fact that there were several different grades and prices of each kind of tea, it is noticeable that there is no testimony which fixes how much of each kind was disposed of and how much remained on hand. Allowing defendant's asserted right to be relieved from...