Noble v. Olympia Brewing Co.

• Decision Date: 10 August 1911
• Parties: NOBLE v. OLYMPIA BREWING CO.
• Court: Washington Supreme Court

117 P. 241

64 Wash. 461

NOBLE v. OLYMPIA BREWING CO.

Supreme Court of Washington, En Banc.

August 10, 1911

Appeal from Superior Court, Thurston County; John R. Mitchell Judge.

Action by Wm. K. Noble against the Olympia Brewing Company. From a judgment for plaintiff for less than prayed, he appeals. Reversed and remanded for new trial.

King &amp King, for appellant.

G. C Israel, for respondent.

CROW J.

This action was commenced by Wm. K. Noble against Olympia Brewing Company, a corporation, to recover $945.49, remainder of purchase price on a car load of merchandise. Judgment was entered in plaintiff's favor for $176.20, less $37.60 costs awarded to the defendant. The plaintiff has appealed.

The evidence shows that on or about February 5, 1907, appellant sold respondent a car load of elm hoops and liners, to be delivered f. o. b. at Olympia, Wash.; that after much delay, claimed by appellant to have been caused by inability to obtain a suitable car, the shipment was made from Columbus, Ohio, and reached Olympia, Wash., or on about May 3, 1907. On May 11, 1907, respondent wrote appellant the hoops and liners were of inferior quality; and requested a memorandum credit of 25 per cent. on the invoice price to cover its alleged loss. Appellant promptly refused this request, contended the goods were first-class, and insisted upon full payment. Respondent by way of affirmative defense alleged the goods were guaranteed; that, relying upon such guaranty, it paid $454.75 freight charges, unloaded the car, and discovered the goods were of inferior quality, a fact that could only be definitely ascertained by using a portion of them; that respondent notified appellant of the condition of the hoops and liners, and refused to accept them except at a discount; that when respondent ordered the hoops appellant agreed to ship promptly, but failed to do so; that by reason of appellant's delay respondent was without hoops or liners for use in its business, and was compelled to commence using the shipment; that in so doing it discovered their inferior quality; that appellant has refused, and still refuses, to accept a return of the goods; that respondent now holds subject to appellant's order 38,080 6-6 elm hoops, 10,000 6-0 elm hoops, and 40,000 liners, which are without value to respondent; that while attempting to adjust its demands respondent used 15,000 of the 6-0 elm hoops, 30,000 of the 6-6 elm hoops, and 10,000 liners; that in doing so it sustained a loss of 15 per cent. thereon; that the hoops and liners so used were of no greater value than $612.75; that respondent has paid thereon $454.75, the freight charges; that there remains due appellant therefor $158 which respondent tendered in court with $18.20 accrued interest, and $16.20 costs, or $192.40 in all. The jury returned a verdict in appellant's favor for $176.20.

Appellant's controlling contention is that from the allegations of the answer and undisputed written evidence it clearly appears there was no rescission of the contract, and that by receiving the car, and using the quantity of hoops and liners alleged in the answer, respondent not only waived its right to rescind but also accepted the entire shipment. Making this contention appellant requested the following instruction which was refused: 'The defendant alleges in its answer that, after using the portions of the hoops and liners as referred to heretofore, it tendered back to the plaintiff the remaining portions of said hoops and liners, and offered to pay for those portions used, at the contract price, less 15 per cent. for breakage, which offer the plaintiff rejected, and you are instructed that the plaintiff had a right to reject this offer, and it did not constitute a defense to this action for the reason that, by using the considerable portion of the hoops and liners that it did, the defendant waived its right to rescind the contract for a breach thereof, as to the quality of the hoops and liners, if there was any such breach, and bound itself to take all the hoops and liners, and pay for the same.' Instead of giving this instruction, the trial judge sumitted to the jury for its determination the question whether there had been an acceptance or a rescission by respondent. There is nothing in the record sufficient to show that respondent at any time made a positive and unconditional declaration of its election to rescind, or that it endered a return of the goods, prior to the filing of its answer. In making this statement we are not unmindful of respondent's letters to appellant. On May 11, 1907, it wrote appellant it would not accept the goods unless appellant conceded a credit of 25 per cent. on the invoice price, which appellant promptly refused. Much correspondence ensued throughout all of which respondent contended the goods were of inferior quality, while appellant contended they were first-class. This correspondence continued from May, 1907, until the following December without satisfactory results. During this time respondent used in its business a large portion of the hoops and liners, the amount being alleged in its answer. It is fallacious to argue that it could continue using the goods, and at the same time rescind the order, or that it was necessary for respondent to use so large a percentage for the sole purpose of ascertaining their quality while respondent at the same time reserved to itself the right to rescind. Respondent's first letter, written after the arrival of the car dated May 11, 1907, reads as follows: 'We have received the car of hoops which you sent us, and are now using them. We wish to state that we are exceedingly disappointed in the quality of stock sent us as the breakage of these hoops average 25 per cent., caused from not being first-class stock. The head liners are in about the same condition and we are mailing you a sample of them to show you what we actually received. Had we known that this car of stock would turn out so poor we would not have received it. As you promised us that, you would send us strictly No. 1 stock we expected to receive it. We must insist upon your sending us a credit memorandum for 25 per cent. of the amount of your invoice to cover our loss on this shipment. We will make no settlement any other way, so hope to be favored with your credit by return mail so as to make settlement.' This language indicates an election, intention, and willingness to accept and use the goods at a reduced price. On May 16th appellant answered, refusing the requested credit, saying: 'Wish to say that we cannot entertain any thoughts of allowing you to deduct twenty-five per cent. from the face of our invoice, as, if you cannot use this car as per invoice rendered you, wish you would kindly wire us immediately upon receipt of this letter.' Respondent did not wire as requested, but on May 24th wrote another letter in which it evidenced its continued use of the hoops and liners by making the following statement: 'Each cooper is keeping a daily report...