Hytken Brothers v. Hanover Children's Wear Co., Inc.

• Decision Date: 25 November 1929
• Docket Number: 28193
• Parties: HYTKEN BROTHERS v. HANOVER CHILDREN'S WEAR CO., INC
• Court: Mississippi Supreme Court

124 So. 654

155 Miss. 478

HYTKEN BROTHERS v. HANOVER CHILDREN'S WEAR CO., INC

No. 28193

Supreme Court of Mississippi

November 25, 1929

Division B

SALES. Merchant buying from wholesaler, with understanding that goods, if not as ordered would be returned, must return all or accept all.

Where a merchant buying goods from a wholesaler buys a bill of goods selected and the bill therefor is made out as a continuous transaction with the understanding that if the goods are not as ordered they will be returned, such buyer must return the goods as a whole or accept them as a whole, and cannot return part and retain part. Nelson v. Wilkins, 151 Miss. 492, 118 So. 436, and other cases cited.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, Second district, HON W. A. ALCORN, JR., Judge.

Action by the Hanover Children's Wear Company, Inc., against Hytken Brothers. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Somerville & Somerville, of Cleveland, and Howorth & Howorth, of Jackson, for appellant.

The contract in suit is divisible as to each of the items and may be enforced as to some and rescinded as to others.

23 R. C. L., pp. 1444 and 1341-2; 5 Elliott on Contracts, p. 1152; 2 Elliott on Contracts, p. 828; 89 Miss. 165 (Brief) citing 7 A. & E. Ency. Law, 95, 89 Miss. 168; Johnson v. Stone, 69 Miss. 826, 13 So. 858; Pierson v. Crooks (N.Y.), 22 N.E. 349; Schiller v. Blythe & Fargo Co. (Wyo.), 88 P. 648; Buckeye Buggy Co. v. Montana Stables (Wash.), 85 P. 1077; Costigan v. Hawkins (Wisc.), 94 Am. Dec. 583; Herzog v. Purdy (Cal.), 51 P. 27; Barlow v. Stone (Mass.), 86. N.E. 306; Williams v. Robb (Mich.), 62 N.W. 352; Hutchins v. Smith Harrison & Co. (Miss.), 64 So. 789.

The vendor cannot prevent the purchaser from accepting what he had ordered by sending him also other goods that he did not order.

Hutchins v. Smith Harrison & Co., 64 So. 789; Cohen v. Pemberton, 53 Conn. 221, 2 A. 315, 5 A. 582, 55 Am. Rep. 101.

W. W. Simmons, of Cleveland, for appellee.

A merchant buying from a wholesaler, with the understanding that goods if not as ordered would be returned, must return all or accept all.

Brown v. Norman, 65 Miss. 369, 4 So. 293, 7 A. S. R. 663; Kanson Hat & Cap Mfg. Co. v. J. D. Blakeney & Son, 142 Miss. 851, 108 So. 139; Mason v. Bovet, 1 Denio 69, 43 Am. Dec. 651; Hammond v. Pennock, 61 N.Y. 145; Baker v. Lever, 67 N.Y. 304, 23 Am. Rep. 117; Gatling v. Newell, 9 Ind. 574; S. P. Nelson & Sons v. Wilkins & Parks, 151 Miss. 492, 118 So. 436; Hutchins v. Smith Harrison & Co., 106 Miss. 852, 64 So. 789; Ware v. Horton, 41 Miss. 370; Addison on Con., 273; Vorhees v. Earl, 2 Hill (N.Y.) 288, 38 Am. Dec. 588; Chitty on Con., 815, 691, 485; Ormond v. Henderson, 77 Miss. 34, 24 So. 170; Rubenstein v. Grossman-Winfield Millinery Co., 109 Miss. 819, 69 So. 688; Manss-Bruning Shoe Mfg. Co. v. Prince (W. Va.), 41 S.E. 907.

Ratification of a part of a contract is ratification of the whole.

7 Am. & Eng. Enc. Law (2 Ed.), 144; Maynard v. Render, 23 S.E. 194; Clark, Cont., 350; Hutton v. Dewing, 42 W.Va. 691, 26 S.E. 197; Charles Syer & Co. v. Lester (Va.), 82 S.E. 122; Simonoff v. Parson, (Okla.), 153 P. 152; Northwestern Rug Mfg. Co. v. Russellville Furniture & Mercantile Co., 116 So. 314; Con. Jewelry Co. v. Pugh, 168 Ala. 295, 53 So. 324, Ann. Cas. 1912A, 657; Barnett v. Stanton, 2 Ala. 181; Am. Sales Book Co. v. Pope & Co., 7 Ala.App. 304, 61 So. 45; Emerson-Brantingham I. Co. v. Arrington, 216 Ala. 21, 112 So. 428; Stephenson v. Allison, 123 Ala. 439, 26 So. 290; 35 Cyc. "Sales," 139; 13 C. J. "Contracts," 623.

OPINION

Ethridge, P. J.

The Hytken Bros., merchants at Cleveland, Miss., ordered a bill of goods from the Hanover Children's Wear Company through a traveling salesman living in Mississippi. The salesman went to the place of business of the appellants with his samples and order book and took the order of the appellants for certain goods, listing them by lot numbers. These lots contained various numbers of goods, mostly dress goods.

It is the contention of Hytken that when the goods came the colors were duplicated, and that there was an understanding that there would be no duplication of the colors of the different numbers; that is to say, each dress would have a particular color all of its own, so that no two buyers would buy exactly the same dress as far as color and looks were concerned. His reason for this is that should a negro or some other person buy a dress of a particular color or pattern that the white trade or other persons would not be inclined to buy another of the same color or make.

When the goods arrived the appellants accepted part of them--a small amount--and undertook to return the rest, contending that they did not come up to the samples, and that there were duplications of color in the several lots ordered. The buyer admitted ordering by numbers, and that each lot number contained several, or at least more than one in each instance, of the articles ordered.

The contention of the appellants is that the purchases were separate transactions, and that they could retain, and did retain, some of them such as conformed to their order, and returned those that did not. We think this transaction does not constitute a separable contract. The order was all embraced hi one order and constituted one transaction, and having accepted part of the shipment, the appellants were bound to accept and pay for all of the shipment. Nelson v. Wilkins, 151 Miss. 492, 118 So. 436; Kanson Hat & Cap Mfg. Co. v....