Knobel v. J. Bartel Co.

• Decision Date: 14 March 1922
• Citation: 187 N.W. 188,176 Wis. 393
• Parties: KNOBEL ET AL. v. J. BARTEL CO.
• Court: Wisconsin Supreme Court

176 Wis. 393

187 N.W. 188

KNOBEL ET AL.

v.J. BARTEL CO.

Supreme Court of Wisconsin.

March 14, 1922.

Appeal from Circuit Court, La Crosse County; E. C. Higbee, Judge.

Action by Morris Knobel and others against the J. Bartel Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

In April, 1920, defendant gave plaintiffs a written order for ladies' plush coats to be shipped from plaintiffs' factory in New York City about August 15; the total price being $2,174.75. The order was accepted; the goods were shipped on August 12 and reached defendant's store in La Crosse August 17.

By mistake, two or three extra garments, not ordered, were included. When the goods came, the head of the department, Miss McGuinn, was ill in the hospital, and she did not return until September 11. After the goods came they were unpacked and hung up. When they were unpacked the president of defendant and two clerks were present and there was full opportunity to see the defects, if any. One of the clerks, Mrs. Cole, had had ten years' experience in handling and selling plush coats. She then saw the defects and spoke of them.

On August 18, the secretary of defendant checked the coats with the invoice, attached the regular store tags giving cost and selling price to each garment, and hung them up in the store. She also noticed at that time the defects. On the same day she wrote to plaintiffs acknowledging receipt of the coats and asked reduction in price, because, she claimed, there had been a decline in the market price. There was no objection in the letter to the quality or the quantity of the goods. On August 24 plaintiffs replied, declining to make the reduction.

The defects complained of were that the garments were streaked, had creases, and were matted; that is, that the fiber was pressed down. Defendant used a steaming process trying to remedy the matted condition, but was not successful. It is claimed by defendant that there was no adequate examination of the goods until the return from the hospital of Miss McGuinn, and that she was the only person who, by the course of business, was charged with the duty of making the examination. On September 11 the defective garments and the three extra coats were returned to plaintiffs with a check for $1,783.75, being for the amount defendant admitted to be in good condition. Plaintiff refused to accept this amount.

The court submitted a special verdict on defendant's counterclaim for defective goods. The jury found that there were defects and that the goods were depreciated to the amount of $196.81, but that defendant did not make a claim for damages within a reasonable time after it knew or ought to have known of the defects.

By stipulation, the goods were returned to defendant and the action was brought to recover for the stipulated price, including that of the extra garments. Judgment was entered for the price of the goods in the hands of defendant, without deduction of the $196.81, and for the amount of the claim.

Cowie & Hale, of La Crosse, for appellant.

McConnell & Schweizer, of La Crosse, for respondents.

JONES, J. (after stating the facts as above).

[1][2] It is the first assignment of error that the court held as a matter of law that the buyer accepted the goods by holding them 25 days without notifying the seller that the goods were rejected, and in directing a verdict for plaintiffs.

Where goods are delivered to the buyer, which he has not previously examined, he is not deemed to have accepted them unless he has had a reasonable opportunity for examining them for the purpose of ascertaining whether they are in conformity with the contract. Section 1684t47, Stats. By section 1684t48, Stats.:

“The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”

The court based his ruling that there had been an acceptance on the grounds: First, that the action of defendant was inconsistent with the ownership of the goods by the plaintiffs; and, second, that it delayed for an unreasonable time in giving notice of the refusal to accept.

It was undisputed that the defects claimed were of such a nature that they could be easily discovered without very close inspection, and that they were noticed when unpacked by persons having experience in handling such goods. Defendant not only made no objection to the quantity or quality of the goods for 25 days, but did promptly object on other grounds which were not tenable. Under such circumstances, the absence from the store or another person who may have had more experience in examining goods did not afford sufficient excuse for the retention of the goods for so long a period without objection. We also agree with the trial judge that the manner of dealing with the goods was inconsistent with the ownership of the seller.

[3] It is true that what is a reasonable time for acceptance is usually a question for the jury, but the time may be so long that a court can and should say as a matter of law that the acceptance has been made. J. L. Owens Co. v. Whitcomb, 165 Wis. 92, 160 N. W. 161;J. B. Bradford P. Co. v. Baal, 166 Wis. 134, 164 N. W. 822;Fort Wayne P. Co. v. Hurley-Reilly Co., 163 Wis. 179, 157 N. W. 773;Hiltgen v. Biever, 162 Wis. 315, 156 N. W. 132;Kelsey v. J. W....