Littlejohn v. Shaw

• Decision Date: 12 May 1899
• Citation: 159 N.Y. 188,53 N.E. 810
• Parties: LITTLEJOHN et al. v. SHAW et al.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 188

53 N.E. 810

LITTLEJOHN et al.

v.SHAW et al.

Court of Appeals of New York.

May 12, 1899.

Appeal from supreme court, appellate division, First department.

Action by Lomax Littlejohn and others against Daniel A. Shaw and others. From a judgment of the appellate division affirming a judgment for plaintiffs, and an order denying a new trial (39 N. Y. Supp. 595), defendants appeal. Affirmed.

Francis A. Winslow, for appellants.

Frederic G. Dow, for respondents.

GRAY, J.

The cause of action stated in the complaint was the refusal of the defendants to accept and pay for some [159 N.Y. 190]25 tons of No. 1 ‘cube gambier,’ which, it is alleged, they purchased of the plaintiffs in March, 1893. In their answer the defendants alleged that their agreement to purchase the gambier was upon certain terms contained in a writing, to the effect that the gambier was to be ‘shipped free in bags, * * * February, March, April, '93, said shipment at Singapore for New York, deliverable here ex vessel, usual good merchantable quality and condition, at six and one-quarter cents per pound, payable net cash on delivery, in gold or its equivalent. Sound to be taken; damaged, if any, to be rejected on dock at the time of delivery. No arrival, no sale.’ The answer further alleged the willingness of the defendants to carry out the terms of their purchase, and averred the failure of the plaintiffs to perform the conditions of the sale on their part, or to deliver to the defendants merchandise of the kind, quality, or condition specified. When the action came on for trial, it appeared that the gambier had been sold by the plaintiffs to the defendants through brokers, whose memorandum of sale contained the terms to which allusion has been made. Upon the arrival of the merchandise in New York City, the plaintiffs sent a delivery order for the goods to the defendants, who returned the same to the plaintiffs with this indorsement upon it: ‘Rejected. Not good merchantable. D. A. S. & Co.’ Also, on the same day, the defendants wrote this letter to the plaintiffs: ‘We reject the twenty-five tons cubes pr. ‘Strathome’ for two reasons: First, because they are not good merchantable quality, and again because they are not in good merchantable condition. Yours truly, D. A. Shaw & Co.' Subsequently, the plaintiffs notified the defendants that they would sell the gambier for their account and risk at public auction. The sale was had, and to recover the difference between the amount ralized and the contract price of the goods this action was commenced.

The defendants took the position upon the trial, and they contend here, that under the contract of sale it was incumbent upon the plaintiffs, and a condition precedent to their recovery, to prove that all of its terms were fulfilled on their part, and, not having made proof as to manner, condition, or time of shipment, that their action should have been dismissed. As a general rule, and without any facts which would take the case out of the ordinary one of a general refusal to accept the goods, the contention of the defendants might be correct, and the plaintiffs would be called upon to establish their compliance with the essential stipulations of the written contract. It would have to be assumed that its several terms were of importance to the parties, and therefore that proof of compliance was to be made as a condition of enforcing the defendants' obligation to accept the goods. Hill v. Blake, 97 N. Y. 216. But in this case the defendants placed their rejection of the gambier upon two specific grounds, viz. that it was not of good merchantable quality, and that it was not in good merchantable condition. By thus formally stating their objections, they must be held to have waived all other objections. The principle is plain, and needs no argument in support of it, that, if a particular objection is taken to the performance, and the party is silent as to all others, they are deemed to be waived. This waiver of all other objections is not only justly inferable, generally, but is especially so when, as under the circumstances present in this case, the deliberateness with which the objections are stated leaves it to be implied that there has been a consideration of the matter of the acceptance of the goods, and a result reached upon particular grounds. The defendants therefore were not in a position to insist upon any...