Moline Jewelry Co. v. Dinnan

• Decision Date: 03 August 1908
• Citation: 70 A. 634,81 Conn. 111
• Parties: MOLINE JEWELRY CO. v. DINNAN.
• Court: Connecticut Supreme Court

70 A. 634

81 Conn. 111

MOLINE JEWELRY CO.

v. DINNAN.

Supreme Court of Errors of Connecticut.

Aug. 3, 1908.

Appeal from Court of Common Pleas, New Haven County; Isaac Wolfe, Judge.

Action by the Moline Jewelry Company against John J. Dinnan. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

George E. Beers and Fred C. Russell, for appellant.

Osborne A. Day, for appellee.

HALL, J. The plaintiffs are copartners and manufacturers and wholesale dealers in jewelry in Iowa City, Iowa, with an office also in Moline, Ill. It appeared in evidence in the trial court that at the solicitation of the plaintiffs' agent, in this state, the defendant, who has a store at New Haven, on April 18, 1906, sent them an order for certain jewelry. The order was upon a printed form, furnished by the plaintiffs' agent, and which is made a part of the complaint. At the head of the form are these words: "Following is a list of goods and terms for our $322.25 order." There follows an agreement of the plaintiffs to buy back unsold goods; a list of various kinds of described jewelry, with their prices, amounting to $322.25; "the terms of payment," either by cash or by four acceptances; a statement, under the title of "Warranty," that the plaintiffs will replace any article not wearing satisfactorily; and a provision for the exchange of goods purchased for other styles or patterns. The following is the language of the order signed by the defendant: "Moline Jewelry Co., Moline, Illinois—Gentlemen: On your approval of this order, please deliver to us at your earliest convenience, f. o. b. transportation companies, either at distributing point or at factory point, $250 worth the above-described goods, and no others, on the terms and conditions herein set forth, and no others, all of which I have read and found complete and satisfactory." Under the defendant's signature was the name of the salesman who solicited the order. On April 20, 1906, the plaintiffs delivered the jewelry in conformity with the order, as they claim, addressed to the defendant at New Haven to the United States Express Company, and on the same day sent the defendant an invoice of the same, upon which was printed: "All claims of any nature must be made on receipt of this bill." "All bills payable at Moline, Illinois." "No freight or express charges allowed." The defendant claimed to have proved: That, after having received the goods and caused them to be examined by a competent jeweler, he on the 12th of May wrote the plaintiffs as follows: "The Moline Jewelry Co.—Gentlemen: I hold your goods subject to your disposal. The terms are not according to agreement. Consequently I don't care to have anything further to do with them. They await your instructions." And that upon receiving a reply from the plaintiffs that they had no orders to give, the defendant, on May 19th, reship-ped the goods to the plaintiffs, who refused to receive them, and that they were returned to the defendant, who still holds them, subject to the plaintiffs' order. In his substituted answer the defendant avers that the goods sent did not comply with the order, that the plaintiffs fraudulently substituted worthless and imitation goods for those or dered, and that he refused to accept them, and he claimed to have proved that among the goods not complying with the order were certain rings, marked "E. 14 K," indicating that they were solid 14-karat gold, which were not solid gold, and other goods so marked, either upon the articles themselves or upon the cards to which they were attached, as to render the manufacture, sale, or possession of them a misdemeanor under section 1381 of the General Statutes of 1902 of this state.

The trial judge charged the jury regarding the effect of such claimed facts in part as follows: "I desire to call your attention to the claim made by the defendant that the goods sent to him by the plaintiffs, or a considerable portion of them, at least, are unmerchantable for the further reason that they are of such a character, because of the marks thereon, * * * that it would be in...