Harzfeld v. Converse

• Decision Date: 31 March 1883
• Citation: 1883 WL 10159,105 Ill. 534
• Parties: ALBERT HARZFELD et al.v.EDWARD W. CONVERSE et al.
• Court: Illinois Supreme Court

105 Ill. 534

1883 WL 10159 (Ill.)

ALBERT HARZFELD et al.

v.EDWARD W. CONVERSE et al.

Supreme Court of Illinois.

Filed at Ottawa Jan. 31, 1883.Rehearing denied March Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding.

Messrs. FLOWER, REMY & GREGORY, for the appellants:

In the case of an executory contract of purchase of goods, or purchase by sample, the rejection of articles not answering to the terms of the contract does not stand upon the ground of rescission, nor does the right to return the goods depend upon a warranty. Mansfield v. Trigg, 113 Mass. 350.

In a sale with warranty the seller sells a certain article, and warrants its quality. In an executory contract to sell, he agrees to furnish articles of a certain quality. Unless he does so, the purchaser is not bound to receive them. Hubbard v. George, 49 Ill. 275.

The right to reject must be exercised before the title to the goods tendered has passed. After the goods have been accepted, or a reasonable time has elapsed after delivery for the purchaser to inspect, no right of rejection will exist, even though the goods are not such as were contracted for. Doane v. Dunham, 65 Ill. 512.

In a case of this kind, where the purchaser is not held to a rescission, but to a mere rejection, a notice that the purchaser holds the goods subject to the seller's order, or an offer to return, is sufficient, and actual return is not required to maintain an action to recover back the price paid for the goods not accepted, as not being such as the contract requires. Doane v. Dunham, 65 Ill. 512; Ellis v. Roche, 73 Id. 280; Grimoldby v. Wells, L. R. 10 C. P. 391; Lucy v. Mowflet, 5 H. & N. 233. Messrs. MCCAGG & CULVER, for the appellees:

The goods not having been returned to the appellees in New York, or offered to be returned to them there, appellants were not entitled to recover the purchase money in this form of action, based upon a rescission of the contract. A rescission of a contract must be in toto, and the other party placed in statu quo. Buchenau v. Horney, 12 Ill. 336; Downer v. Smith, 32 Vt. 1; Tisdale v. Buckmore, 33 Maine, 461; Kimball v. Cunningham, 4 Mass. 504; Conner v. Henderson, 15 Id. 319; Norton v. Young, 3 Greenlf. 30; Carter v. Walker, 2 Rich. (S. C.) L. 40; 1 Chitty's Pleading, 355; Stevens v. Lyford, 7 N. H. 360; Wolf v. Dietzsch, 75 Ill. 205.

But the goods, in fact, were of the kind and quality purchased by appellants' agent, and they have no just ground of complaint in any form of action.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

Originally, this action was commenced in attachment, by Albert Harzfeld and others, against Edward W. Converse and others, and the writ served on garnishees. A declaration in assumpsit, containing only the common counts, was filed, and by agreement of parties the persons served as garnishees were discharged, and defendants filed a plea of the general issue. On the trial in the Superior Court plaintiffs obtained a verdict for $1997.56. A motion for a new trial was made by defendants. Before that motion was decided, plaintiffs remitted from the verdict in their favor the sum of $317.72, and thereupon the court overruled the motion for a new trial, and rendered judgment on the verdict for $1679.84. That judgment, on the appeal of defendants, was reversed by the Appellate Court, and the cause remanded to the Superior Court, “for such other and further proceedings as to law and justice shall appertain.” Afterwards, on motion of plaintiffs, and without objection from defendants, the Appellate Court struck out the remanding order in their judgment previously rendered, and after finding certain facts, to be incorporated in its judgment and final order, as amended, allowed plaintiffs' motion for an appeal to the Supreme Court, on giving the usual bond in a sum fixed by the court, which was done.

The errors assigned in this court are: First, the Appellate Court erred in holding the third instruction given for the plaintiffs in the circuit court to be erroneous; second, the Appellate Court erred in holding plaintiffs were prevented from rejecting the five cases of beavers inferior to sample, because they had previously accepted one case as up to sample; and third, that the court erred in reversing the judgment of the Superior Court. There is nothing in this record, as it comes before this court, that shows the Appellate Court held the third instruction given for plaintiffs in the trial court was erroneous. Nor is there anything that shows that court held, as a matter of law, that plaintiffs were prevented from rejecting five cases of beavers inferior to sample, because they had previously accepted one case as up to sample. According to the decision of this court in Coalfield Coal Co. v. Peck, 98 Ill. 139, the opinion of the Appellate Court may not be looked into to ascertain what that court decided. It must appear from the judgment or final order of the court. It is therefore clear, that on this appeal all that can be considered is the third error of the series,--that is, did the Appellate Court err in reversing the judgment of the Superior Court.

The action of the Appellate Court in refusing to remand the cause must be treated as in effect rendering a final judgment in that court on the merits of the case, independently of any action or ruling of the Superior Court on the trial of the case,--otherwise there could be no appeal from its decision. If it were merely a judgment of reversal, and not a final judgment, in the sense that term is used in the statute, it is plain no appeal would lie to this court. Under the Practice act, the Appellate Court, in cases of appeal or writ of error, may render final judgment, and cause execution to be issued. Unless that was done in this case no appeal...