Manss-Bruning Shoe Co. v. Prince.
| Decision Date | 07 June 1902 |
| Citation | 51 W.Va. 510 |
| Court | West Virginia Supreme Court |
| Parties | Manss-Bruning Shoe Co. v. Prince. |
Purchaser's Liability for Goods Acts of Ownership.
A purchaser of goods cannot defeat payment for them on the ground either that he countermanded the order for them, or that the delivery is after the stipulated date, if he takes the goods from the railroad depot to his store, opens the boxes containing them and examines them, or does any act which only an answer can do. (pp. 512, 513).
Sale of Goods Rescission of Contract in Toto.
A purchaser of goods who has right to rescind the sale contract, must rescind in toto, not in part. He cannot keep part of the goods, and return the remainder without becoming liable for the whole. (pp. 513, 514).
Purchaser Must Pay if He Keeps Part of Goods.
A purchaser of goods cannot keep part of them, and return the remainder, and defeat payment for them according to the contract on the ground that the part returned were not of the agreed quality or make. (p. 514).
4. Verdict Contrary to Law Must be set Aside.
A verdict which, on the fixed facts of the case, is contrary to law, must be set aside, (p. 515).
Appeal from Circuit Court, Mercer County.,
Action by the Manss-Bruning Shoe Manufacturing Company against Ash M. Prince. Judgment for defendant. Plaintiff appeals.
Reversed.
W. Walter McClaugherty, for appellant.
J. M. Anderson and Harold A. Kitz, for appellee.
The Manss-Bruning Shoe Manufacturing Company brought assumpsit in the circuit court of Mercer County against Ash M. Prince, surviving partner of a firm which did business in the name of Ash M. Prince, which resulted in a verdict and judgment for the defendant, and the plaintiff appealed to this Court.
The Shoe Company took an order from Prince to manufacture for the firm a lot of shoes, which were made and shipped to Prince. He refused to pay for them. The defence is that the shoes were designed for the early spring trade, and were to be delivered by the 15th day of March, and not having been shipped Prince wrote on the 17th of April countermanding the order, and that some of the shoes were inferior to the samples by which the order was given.
Let us see first as to this countermand. The goods were to be delivered on or about March 15th. On February 24th the Shoe Company wrote Prince that the order was that day put "in work," that is, that the manufacture of the shoes was be-gun. Prince was silent until the 17th of April, when he wrote the countermand. The order was not for shoes already made, but for shoes to be manufactured for Prince's special trade.
In the letter notifying Prince that the manufacture of the shoes was in progress, the Shoe Company said that the shoes would be shipped "just as soon as possible." When the order was made the agent of the Shoe Company told Prince that there were many orders to be tilled. Why did not Prince write to the Shoe Company telling it that the shoes must come by March 15th, as this letter of the Shoe Company had said the shoes would be shipped "just as soon as possible," thus indicating that there, might be delay/ and when he knew by letter of the 24th of February, that the work only then began? The 15th of March came and the shoes did not come. Why did Prince remain silent for thirty-two days after that date? If he needed the shoes so much then, why let the Shoe Company go on so long at work on the shoes? it is different from, the case of an order for shoes already made. The damage to the seller in that case would not be so great from a. countermand.
When he gave the countermand he knew that the Shoe Company had been engaged on the work fifty-one days, and that a countermand would entail loss on the seller. The defendant knew that the Shoe Company did not keep shoes in stock, but manufactured them upon orders for express use. It cost nothing to mail a letter at Bluefield to the Shoe Company at Cincinnati. Justice to that company demanded it of Prince. Under the circumstances, if the case turned, as it does not, upon this countermand, it would not seem to be just to allow this countermand to avail as a defence. The shoes had then been manufactured. The Shoe Company was derelict, it is true, in failing to deliver by the agreed date; but it claims that Prince was to notify it when to go to work, and this seems likely from the failure of Prince to complain of the delay sooner than he did.
But the case does not turn alone upon the right of Prince to countermand on the 17th of April, or the failure to deliver the shoes by the 15th of March. In fact, that countermand, that delay, are immaterial, playing no part in the decision. The Shoe Company, not recognizing the countermand shipped the shoes on the 21st of April and they arrived at Bluefield before the 26th. The Shoe Company notified Prince of shipment by sending him a bill which was received by him 23rd of April. If Prince wanted to insist that the goods were behind time and countermanded, then was the time finally to do so by declining to take control of the goods; but he paid the freight and took the goods from the depot to the firm's store, opened and examined the goods, and wrote the Shoe Company that the goods had come too late, and that they were subject to its order. This was a waiver of the objection that the goods had come behind time and also a waiver of the countermand. An absolute re- fusal to accept was the only proper thing to do to insist upon the countermand or lateness of delivery
A purchaser of the goods has the right to take them from the depot or wharf to examine their quality; hut if he wants to say that he does not want them at all because of a breach of contract in the time of delivery, or that he had countermanded the order he cannot do this. So, we say that the date of delivery and the countermand are wholly inoperative and immaterial in the case, for reason just stated, and also for reasons below given.
But Prince also says that some of the goods in quality did not correspond with the samples by which they were sold. This defence, as also the defence that the order had been countermanded, and that the goods had come too late, are all met by facts now to be stated. In Prince's letter to the Shoe Company touching the arrival of the goods, he declined to accept them because of his countermand and because of lateness of delivery, and also stated that some of the goods were not up to sample, and added: "I could use a few of them, if you desire." The goods were in his store, the boxes opened, when he wrote that letter, 26th of April. The Shoe Company did not indicate any willingness for Prince to...
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