S. P. Nelson & Sons v. Wilkins

• Decision Date: 22 October 1928
• Docket Number: 27303
• Citation: 118 So. 436,151 Miss. 492
• Parties: S. P. NELSON & SONS v. WILKINS & PARKS. [*]
• Court: Mississippi Supreme Court

118 So. 436

151 Miss. 492

S. P. NELSON & SONS v. WILKINS & PARKS. ^[*]

No. 27303

Supreme Court of Mississippi

October 22, 1928

Division B

SALES. Purchaser of hats by sample had no right to retain part of shipment and reject balance for defective quality.

Purchaser of hats from samples had no right, on receiving shipment, to retain a part thereof and reject the balance of the shipment on theory that there was a breach of contract relative to quality, since, on discovery of alleged breach entitling purchaser to rescission, he was required to reject all in order to effect rescission, and by acceptance of a part made himself liable for entire lot.

HON. J I. STURDIVANT, Judge.

APPEAL from circuit court of Noxubee county, HON. J. I. STURDIVANT Judge.

Action by S. P. Nelson & Sons against Wilkins & Parks. Judgment for plaintiffs for a sum less than claimed, and they appeal. Reversed and rendered.

Judgment reversed.

Loving & Loving, for appellants.

The appellant takes the position that the appellees could not accept some of these goods and reject some. By the acceptance they made, they had no right to return any of the goods and are liable for the entire shipment. In support of this proposition we refer this Honorable Court to Strauss et al. v. National Parlor Furniture Co., 24 So. 703.

In Ruberstein v. Grossman-Winfield Millinery Co. 109 Miss. 819, 69 So. 688, there was a controversy as to the goods purchased or the quantity of goods purchased, and in which the appellant retained a portion of the goods and denied liability for a portion in which this court held that the appellant was liable for the entire lot. A suggestion of error was filed in this case and was overruled in 110 Miss. 213, 70 So. 210.

In Kansas Hat & Cap Mfg. Co. v. J. D. Blakeney & Son, 108 So. 139, the appellee's defense to the action was that appellant shipped more goods than ordered and in the meantime, by some means, he sold four hats out of the lot which proved to be unsatisfactory and returned to him and he refunded the money for the hats and offered to return all of the caps and all the hats but four and testified that he did not have these four hats on hand.

This case was reversed and judgment entered in this court for plaintiff for the amount sued for.

Dorroh & Strong, for appellees.

The appellees take just exactly the opposite position from the appellant, and that is, that the order involved in this suit was one that comes in the class of divisible contracts and the appellees had the right to do just as they did in this case, accept that portion of the goods that met the conditions of the contract and rejected the other goods. 23 R. C. L. 164; Cohen v. Pemberton, 53 Conn. 221, 55 Am. Rep. 101. The facts in this case are just exactly and identically the facts in the instant case. The case of Rubenstein v. Grossman-Winfield Millinery Co., 109 Miss. 819, 69 So. 688, 110 Miss. 213, was a suit based on open account for the purchase of a job lot of hats, where the seller's offer was to sell the entire lot and the buyer agreed to accept the entire lot. It is easy to see this was not a severable contract. See Hutchens v. Smith-Harrison & Co., 64 So. 789.

Appellants cite the case of Kansas Hat & Cap Co. v. J. D. Blakeney & Son, 108 So. 139. We do not think the facts in this case at all on a parity with the instant case and we cannot see where any phase of the case could be urged as any authority in this case for the reason there was only the question of inferior quality and the buyer only offered to return a portion of the goods and never made his offer good, by performing or attempting to perform. Then another phase is, we think the offer to return only four hats made this case one whereby the amount offered to be returned was not a separate and divisible quantity of the hats purchased.

We think the appellees were clearly within their rights when they acted promptly in examining and returning the hats that were not in accordance with the specifications of those purchased.

See the very extensive note in 2 A. L. R. 643, on the question of contract for sale of goods as entire or divisible. This note follows the case of Stearnes Salt & Lumber Company v. Nennis Lumber Co., 188 Mich. 700, 154 N.W. 91, 2 A. L. R. 638.

Loving & Loving, in reply for appellants.

On the question of the contract in this case being a severable contract, the appellee cites Cohn v. Pemberton, 53 Conn. 221, 55 American Reports 101, and we are unable to see where the appellee gets much consolation from this case. The last paragraph on page 103 of the American Reports reads as follows: "If then we should concede that the order for each dozen or fraction of a dozen was an entire contract, and that the hats or caps sent were materially different in size from those ordered the plaintiff, himself was in default as to contract, and could not recover anything, except for the fact that partial performance had been accepted and full performance waived by the act of defendant," and also the following paragraph on page 104 of said report: "Our reasoning has a bearing also on the question whether the contract was entire or divisible, which as we have already indicated, we do not intend to decide," consequently from this case we gather that the court refused to hold that this was a severable contract. To hold that these orders for merchandise are severable contracts, would be, it seems to the appellant, in conflict...