Luger Furniture Co. v. Street

• Decision Date: 30 July 1897
• Citation: Luger Furniture Co. v. Street, 50 P. 125, 6 Okla. 312, 1897 OK 82 (Okla. 1897)
• Parties: LUGER FURNITURE CO. v. STREET.
• Court: Oklahoma Supreme Court

50 P. 125

6 Okla. 312, 1897 OK 82

LUGER FURNITURE CO. v. STREET.

Supreme Court of Oklahoma

July 30, 1897

Syllabus by the Court.

1. If goods purchased do not comply with the condition of the contract, it is the duty of the vendee to return them to the vendor without unreasonable delay; and if he fails to do so or to give notice of an intention to do so, he is presumed to have waived his right.

2. What, under the circumstances, constitutes a reasonable time for rescinding the contract, is a question of law for the court.

Error from district court, Oklahoma county; before Justice Henry W Scott.

Action in the probate court by the Luger Furniture Company, a corporation, against J. G. Street, to recover the sum of $113.10 for goods, wares, and merchandise sold and delivered. The cause was appealed to the district court, where defendant had judgment, and the cause was brought to this court by plaintiff by petition in error. Reversed.

J. A Wilson, for plaintiff in error.

Chas H. Eagin, for defendant in error.

TARSNEY J.

In December, 1893, the plaintiff, the Luger Furniture Company, a corporation created under the laws of the state of Minnesota, sold to J. G. Street, defendant, who was engaged in the furniture business at Oklahoma City, Okl. T., "180 beds," at prices ranging from $1.10 to $2.60 per bed, the total of the invoice being $458.70. The goods were ordered by the defendant at Oklahoma City from one S. A. Russell, a merchandise broker, who was selling goods for the plaintiff upon commission. It was agreed between Russell and the defendant that all the beds ordered should be of the width of four feet two inches, and the order sent to the plaintiff was for beds all of the width of four feet two inches. The plaintiff filed the order by shipping to the defendant the number of beds ordered, but 75 of said beds, invoiced at $113.10, were only four feet in width, being two inches narrower than ordered. Four-foot beds were not used by the trade in this territory, nor were mattresses or springs suitable for use upon a four-foot bed. The defendant received all the goods, and placed them in storage in his warehouse, and did not discover until five months afterwards that this lot of 75 were not of the width directed. He made no examination of them from the time they were received until more than five months afterwards, to ascertain if they were of the description and kind ordered. From time to time after the delivery, he made payment by installments upon the bill, until but $113.10 remained unpaid. At various times during said five months he asked for an extension of time to make payment. He first discovered the deficiency in the width of the beds when he set up the first of said lot of 75 for use; then, finding that there were no springs or mattresses to match the same, he immediately notified the plaintiff of the deficiency, and that these 75 beds were subject to its order. Plaintiff brought suit for the price of said beds, and on this statement of facts the court below found for the defendant.

Plaintiff in error contends that defendant waived his right to rescind the contract as to these goods by waiting nearly six months before electing so to do; that he was bound within a reasonable time after the delivery to inspect the goods, and ascertain whether they corresponded in kind with the goods ordered, and, if not acceptable, to notify the plaintiff that a purchaser of goods, if he claims that they do not correspond in kind or quality with those ordered, must, within a reasonable time, rescind the contract, or, if he retains the property, and affairs the contract, he may recover damages from the vendor for the breach of the contract. When goods are sent to buyer in performance of the vendor's contract, the buyer is not precluded from objecting to them by merely receiving them, for receipt is one thing and acceptance another. A delivery, such as will satisfy the statute of frauds, and transfer the title from the vendor to the vendee, is one thing, and the acceptance of it, such as will estop the vendee from returning it to the vendor, is quite a different thing. Calhoun v. Paule, 26 Mo.App. 274; Simpson v. Krumdick, 28 Minn. 352, 10 N.W. 18. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time. 2 Benj. Sales, § 935; Henkel v. Welsh, 41 Mich. 664, 3 N.W. 171; Gaff v. Homeyer, 59 Mo. 345; Hirshhorn v. Stewart, 49 Iowa, 418. In this last case the facts were that the petition declared upon a promissory note. The answer alleged that the note was executed for certain cigars before ordered by...