Simonoff v. Parsons

• Decision Date: 23 November 1915
• Docket Number: 5789.
• Citation: 153 P. 152,52 Okla. 600,1915 OK 961
• Parties: SIMONOFF v. PARSONS.
• Court: Oklahoma Supreme Court

153 P. 152

52 Okla. 600, 1915 OK 961

SIMONOFF v. PARSONS.

No. 5789.

Supreme Court of Oklahoma

November 23, 1915

Syllabus by the Court.

Where a merchant places an order for goods and on receipt of the goods opens them, and finds the quantity and quality as ordered, and retains and disposes of a portion of the goods he thereby accepts the whole and becomes liable for the whole of the contract price, since under a sale which is entire the purchaser cannot appropriate a portion of the goods, and reject the residue.

Commissioners' Opinion, Division No. 2. Error from County Court, Jefferson County; B. F. Price, Judge.

Action by Henry Simonoff against Ed. V. Parsons. Judgment for defendant, and plaintiff brings error. Reversed and remanded with directions.

Nicholas & Lyle, of Oklahoma City, and N.C. Peters, of Waurika, for plaintiff in error.

BRETT C.

This is an appeal from the county court of Jefferson county, in which court the plaintiff in error, as plaintiff, was suing the defendant in error, as defendant, for $200, on account of goods sold and delivered by plaintiff to defendant. A trial was had to the court and jury, which resulted in judgment for defendant, and the plaintiff brings the case to this court by petition in error and case-made.

The material facts are that about May 1, 1911, defendant ordered a certain bill of ladies' and misses' skirts from the plaintiff, and on May 10, 1911, wired the plaintiff "Hold order for skirts, letter will follow to explain matters." The plaintiff held the order until May 19th and, receiving no further communication from the defendant, shipped the quantity and quality of goods ordered. On receiving the goods the defendant opened them, and retained one skirt for one of his clerks, and returned the remainder to the plaintiff, saying to him, "I am keeping one skirt, No. 861, price $3.75. Send bill." The plaintiff refused to accept the returned goods, so notified the defendant, and demanded payment of the contract price. The defendant claims he reserved the right to countermand this order. But, as we view the case, it is wholly immaterial whether he did or did not, since it is clear that he did not countermand, but retained, a portion of the goods upon their arrival. And under a well-settled rule of law, he thereby accepted the whole, and became liable for the whole of the contract price. Babcock et al., Respondents, v. Edmund G. Hutchinson et al., Appellants, 4 Lans. (N. Y.) 276, is a case very much in point, and correctly states the rule of law applicable to the facts in the case at bar. In the body of the opinion it is said:

"This is an action for goods sold and delivered. The plaintiffs are glove manufacturers at Gloversville, Fulton county, and the defendants are merchants at Ph nix, Oswego county. In July, 1869, one of the plaintiffs called at the store of the defendants and offered to sell the defendants certain qualities and quantities of gloves to be thereafter manufactured by the plaintiffs, and forwarded to the defendants. Whether a bargain was then made is in dispute and the referee finds that the evidence does not establish that a bargain was then made. On the 30th day of September, 1869, the plaintiffs forwarded to the defendants the quantity and quality of gloves spoken of in the negotiation, and they also forwarded to the defendants, by mail an invoice of the goods. The invoice and the goods arrived at the store of the defendants on or before

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