Graff v. Foster

• Decision Date: 30 April 1878
• Citation: 67 Mo. 512
• Parties: GRAFF v. FOSTER et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 512

GRAFF

v.FOSTER et al., Appellants.

Supreme Court of Missouri.

April Term, 1878.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

The following are instructions Nos. 3, 4 and 5 offered by defendant and refused by the court:

3rd. If the jury believe from the evidence in this case, that the defendants ordered of plaintiffs, on or about the time stated in the answer to the first count of the petition, twenty-one cases of Valencia oranges, to be shipped to defendants, for which no price was mentioned, but that plaintiffs, instead of sending to defendants the quality or quantity ordered, sent a less quantity of the kind ordered and others of a different kind, then defendants are not liable to plaintiffs for the oranges so sent by plaintiffs, unless defendants received said oranges without objection or appropriated them to their own use; and even then defendants are not liable for any greater sum than said oranges were worth at the time and in the condition in which they were so received or appropriated by defendants.

4th. If the jury believe, from the evidence, that defendants have paid plaintiffs for the oranges sent to defendants by plaintiffs on or about the 7th day of February, 1873, the market value of said oranges at the time they were received and accepted by defendants, then they will find for defendants on the first count of the petition.

5th. Although the jury may believe, from the evidence in this case, that defendants, on or about February 7th, 1873, ordered a certain quantity of oranges of a certain kind to be sent to defendants; yet, if the jury also believe, from the evidence, that, instead of sending to the defendants the quantity and kind of oranges so ordered, plaintiffs sent a less quantity of the kind ordered and also a number of cases of oranges of a kind not ordered by defendants, then defendants are not liable for said oranges by virtue or in consequence of said order; but the oranges so sent were sent at plaintiffs' risk of freezing or injury before the same were received and the modification of such order was assented to by defendants; and defendants are only liable to plaintiffs for the market value of the oranges so received and accepted at the place to which they were consigned and at which they were accepted.

W. H. Sherman for appellant.

1. The fruit shipped, varying materially from the order given, did not become the defendants' property until received and accepted by them, and in order to constitute a final and complete acceptance in this case the assent of defendants should follow, not precede, that of the seller. Cooke v. Millard, 65 N. Y. 366. This shipment of fruit was, before final acceptance, at the risk and upon the responsibility of plaintiffs, and the damage the fruit received was plaintiffs' loss. If the fruit was accepted by defendants at St. Joseph the contract must be taken as made at the place where and at the time when the acceptance was complete, and there being no price agreed upon, defendants are only liable for the market value of the fruit at the time and place of its acceptance by defendants. McIntyre v. Parks, 3 Met. 207: Eliason v. Henshaw, 4 Wheat. 228. Upon these grounds the third, fourth and fifth instructions asked by defendants ought not to have been refused, and plaintiffs' first instruction ought not to have been given.

2. As the fruit actually delivered does not correspond with the warranty or comply with the order given by the purchasers they had a right to rescind the sale by returning, or offering to return within a reasonable time after its delivery to them. Cooke v. Millard, 65 N. Y. 366; Webster v. George, 78 Ill. 230; Don v. Fisher, 1 Cush. 271; Rogers v. Hanson, 35 Iowa 286; Hyatt v. Boyle, 5 Gill & J. 112; Franklin v. Long, 7 Gill & J. 407; Marston v. Knight, 29 Me. 341; Bryant v. Isbaugh, 13 Gray 607; Kurtzman v. Weaver, 20 Pa. St. 422; Youlk v. Eckert, 61 Ill. 318.

3. This fruit being of a perishable nature, and plaintiffs having refused to accept a return thereof when offered, defendants were justified (even if not required), in law to care for it and dispose of it to the best advantage of plaintiffs. If it was sold within a reasonable time at a fair sale by defendants they are only liable for the proceeds arising from such sale less the necessary expenses incurred in handling and disposing of it. Story on Sales, § 138.

4. The contract was within the operation of the statute of frauds. The sale was never legally consummated. There was no acceptance of the fruit by the defendants. Goods must be received and accepted in order to make such a contract binding upon the vendees. Acceptance and receipt are distinct things, and both are necessary. The acceptance must be an ultimate acceptance such as completely affirms the contract. There may be actual receipt without acceptance and an acceptance without a receipt. Delivery merely without acceptance does not take the case out of the statute. Even where there has been actual receipt and handling of the goods a vendee may, nevertheless, under certain circumstances, return them and renounce the bargain, if no earnest has been paid or note or memorandum made in writing. The receipt by the buyer may be and often is for the purpose of seeing whether he will accept or not. A delivery of goods ordered, to a carrier, without more, is not such a delivery as will take the contract out of the operation of the statute of frauds. In such case there is no acceptance of the goods, actual or symbolical, and they are still subject to every objection as to quality or quantity by the buyer. The most that can be said in such a case is that the delivery to a carrier, considered as an agent of the buyer, is but a receipt, not an acceptance, of the goods. When the order is general, merely directing goods of such a price and quality to be sent and not designating the particular goods, the case will not be taken out of the statute of frauds by proof that such goods were sent, if there is nothing to show acceptance independent of proof of the parol contract; but the case is otherwise where the goods are fixed upon and the carrier named by the buyer. Outwater v. Dodge, 6 Wend. 400; Cooke v. Millard, 65 N. Y. 366; Hewes v. Jordan, 39 Md. 473; Rogers v. Hanson, 35 Iowa 286; Howard v. Borden, 13 Allen 300; Kent v. Huskinson, 3 Bos. & Pul. 233; Coombs v. B. & E. R. R. Co., 3 Hurl. & Norm. 510.

Strong & Mosman for respondents.

The defendants must accept the whole contract, or repudiate it entirely. They say they ordered one thing and plaintiffs sent another of less value-- which they received and appropriated as in fulfillment of their request--but will account for it at a rate which is fixed by defendants, without plaintiffs' consent. The answer does not allege notice to plaintiffs of the discrepancy between the order and the fruit received, nor that defendants declined to receive it as filling their order, nor allege notice to plaintiffs that the fruit was subject to their order, nor that it would be sold on plaintiffs' account, nor that it was so sold and account of sales rendered to plaintiffs. If 21 cases of 420's had been shipped, as per order, it will not be denied that the liability of defendants was complete when delivery was made to the carrier at Chicago. This rule needs no citations now. Concede that the shipment differed from the order as to 5 cases, and was correct as to 16 cases. When the goods reached defendants they had the right to refuse them for that reason, but if they received them without objection at the time on that account, they cannot afterwards be heard to urge that objection when sued for the invoice price. Stevens v. Mackay, 40 Mo. 224. By the form of their defense to the first count, they cut off recovery by reason of the fact that the goods were different from those ordered, even if it be held that keeping the goods without objection on that ground, was not an acceptance as a virtual or sufficient compliance with their order, because if the goods were not what they ordered, there was no warranty as to them; if they were such as were ordered, breach of warranty was a good defense. By pleading warranty and breach, they admit they received the goods under the contract. They cannot say that part of the goods were as ordered--others not--abandon the contract; substitute another contract; receive the goods, and recover for breach of the contract repudiated by them. Defendants are “at liberty to accept wholly, or to reject wholly; but one of these things they must do.” 1 Pars. Con., (5 Ed.) 477; Treadwell v. Reynolds, 39 Conn. 31; Dutchess Co. v. Harding, 49 N. Y. 321. If defendants received and appropriated the fruit as in fulfillment of their order, it became their property when delivered to the carrier; 2 Kent Com. 499; Comstock v. Affœlter, 50 Mo. 411; Magruder v. Gage, 33 Md. 344; and if frozen in transit it was their loss. Where perishable goods are sold to be shipped to a distant market, there is no implied warranty that they will continue sound for any definite period. Mann v. Everton, 32 Ind. 355.

NORTON, J.

The petition of plaintiffs contains two counts, in the first of which they allege that defendants are indebted to them in the sum of $103.12, balance due on account of goods sold and delivered them on the 7th of February, 1873. It is alleged in the second count that defendants were indebted to plaintiffs in the sum of $690, for goods sold and delivered them on the 19th of May, 1873. Defendants, in their answer to the first count, deny any indebtedness and allege that one Blackman, a traveling salesman for plaintiffs, represented to them, on the 6th of February, 1873, that plaintiffs had in their store, in...