Rivers Bros. Co. v. Putney.

• Decision Date: 20 June 1921
• Docket Number: No. 2512.,2512.
• Citation: 199 P. 108,27 N.M. 177
• Parties: RIVERS BROS. CO.v.PUTNEY.
• Court: New Mexico Supreme Court

27 N.M. 177

199 P. 108

RIVERS BROS. CO.

v.PUTNEY.

No. 2512.

Supreme Court of New Mexico.

June 20, 1921.

Syllabus by the Court.

Absent contrary contractual provisions, where goods are ordered of a specific quality, the seller undertaking to deliver them to a carrier to be forwarded to the buyer at a distant point, the right of inspection at destination continues for a reasonable time, and in such cases the carrier is not the agent of the buyer for inspection purposes, but only for the receipt and carriage of the goods.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Action by the Rivers Bros. Company against R. E. Putney, trading under the name and style of L. B. Putney. From a judgment of dismissal, plaintiff appeals. Affirmed.

In the absence of contrary contractual provisions, where goods are ordered of a specific quality, the seller undertaking to deliver them to a carrier to be forwarded to the buyer at a distant point, the right of inspection at destination continues for a reasonable time, and in such cases the carrier is not the agent of the buyer for inspection purposes, but only for the receipt and carriage of the goods.

Heacock & Grigsby, of Albuquerque, for appellant.

Reid, Hervey & Iden, of Roswell, for appellee.

PARKER, J.

This is an appeal by Rivers Bros. Company, a corporation, from a judgment rendered in favor of R. E. Putney, trading as L. B. Putney, appellee, dismissing the complaint.

The action was to recover a sum of money on account of the sale and delivery of certain fruit. The facts disclose that the appellee is a wholesale grocer at Albuquerque, and that the appellant is a fruit dealer in Los Angeles, having a broker at Albuquerque. The broker telephoned the appellee asking if he wanted anything on that day's refrigerator dispatch from the appellant from Los Angeles. In response thereto appellee ordered certain fresh fruit. The appellant delivered to the carrier at Los Angeles certain fruit purporting to be in accordance with the appellee's order. The shipment included crates of apricots, apples, and bing cherries, and arrived in a refrigerator car at Albuquerque in slightly shorter than the usual time. No claim was made that the shipment was not properly handled but it was shown by appellee, but denied by appellant, that the apricots were delivered to the carrier in Los Angeles in an overripe and rotton and unsalable condition. On account of the condition of the apricots, the shipment was refused by the appellee on its arrival in Albuquerque, after an inspection thereof by appellee.

The appellant contends, in effect, that the contract was executed for a shipment f. o. b. Los Angeles, and consequently title passed upon delivery there to the carrier, and that the appellee had no right to inspect the shipment at Albuquerque, its agent, the carrier, having received the shipment at Los Angeles, or any right to refuse to accept the shipment upon its arrival at destination.

The court found that the contract called for fruit fit and in condition to ship to Albuquerque; that the appellee had the right to inspect the shipment at Albuquerque; and that the carrier was appellee's agent only in so far as the actual transportation of the goods was concerned.

Appellant's broker testified that he had done business for a number of years with the appellee and that it was always understood that goods purchased from the appellant were sold f. o. b. Los Angeles. On cross-examination the witness testified that what he meant by f. o. b. Los Angeles was that the purchaser should pay the freight from Los Angeles, and that his understanding of his agency was that the carrier was the agent of the purchaser in so far as acceptance of the goods to the standard and quality of those ordered were concerned. He also testified on cross-examination.

“Q. Let us make the illustration not quite so plain; let us suppose that Mr. Putney ordered apricots, which I believe he did in this order. You understand that that order was meant to be apricots to be shipped by refrigerator freight, and to be merchantable when arriving in Albuquerque, you understand that? A. Yes, sir.”

From other testimony of the witness, however, it would appear that all his brokerage business theretofore had been done upon the theory that the buyer took the goods at his own risk, through the agency of the carrier, at point of departure. The trial court, however, found, in substance, that the contract contemplated the delivery at Los Angeles of merchantable fruit, and that the apricots were not of merchantable quality; hence the appellant breached its contract, and the appellee was not required to accept the shipment at destination. It also found, in effect, that the carrier was the agent of the appellee only for the purpose of transportation of the goods, and could not bind the appellee with respect to the quality of the goods ordered and shipped.

The contract, in express terms, was silent as to quality of fruit ordered, but it is evident that the parties contemplated that the sale and purchase was of merchantable fruit--not overripe, decayed, unsalable fruit. It is immaterial whether this be characterized as an express or implied warranty; the fact remains that the contract was for merchantable goods, and that the court was justified, under the doctrine of substantial evidence, to conclude that the apricots, when delivered to the carrier in Los Angeles, did not fulfill the conditions of quality contemplated by the contract made between the parties.

We then have for...