Truslow & Fulle, Inc. v. Diamond Bottling Corp.

• Decision Date: 03 October 1930
• Citation: 112 Conn. 181,151 A. 492
• Parties: TRUSLOW & FULLE, Inc., v. DIAMOND BOTTLING CORPORATION.
• Court: Connecticut Supreme Court

151 A. 492

112 Conn. 181

TRUSLOW & FULLE, Inc., v. DIAMOND BOTTLING CORPORATION.

Supreme Court of Errors of Connecticut.

October 3, 1930

Appeal from Superior Court, New Haven County; Christopher L. Avery Judge.

Action by Truslow & Fulle, Incorporated, against The Diamond Bottling Corporation for goods sold and delivered, in which the defendant filed a counterclaim for damages by reason of defective goods, tried to the court. Judgment for the defendant on the complaint and counterclaim, and appeal by the plaintiff.

Error and new trial ordered.

Philip Pond, Albert McC. Mathewson, and Joseph B. Morse, all of New Haven, for appellant.

William E. Thoms, of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

MALTBIE, J.

The plaintiff in its complaint alleged that the defendant was indebted to it for certain merchandise, part of which had been delivered and the remainder of which was being held subject to the defendant's orders. The defendant admitted that part of the merchandise had been delivered, but denied the rest of the complaint. It then pleaded a special defense the gist of which was that the merchandise consisted of a large quantity of crown caps to be used in its business of bottling and selling beverages, that the caps were defective and wholly useless for the purpose intended, that it had had to discontinue their use, and that they were worthless. It also pleaded a counterclaim in which it was alleged that the plaintiff had sold and delivered to it a great quantity of caps in addition to those for which a recovery was sought in the complaint, under an express representation that they were extra choice quality crowns and suitable for the defendant's business: that they were in fact defective and useless, in that they failed effectively to seal the bottles on which they were used; that the defendant, on discovering their defective quality, informed the plaintiff and received its assurances that they would cause no further trouble; that later certain changes in design were made, with a like assurance; that the defendant relied upon the advice of the plaintiff and used some of those made in the new way; but that the trouble increased until finally the defendant ceased to use caps made by the plaintiff: and the defendant claimed special damages because it had been compelled to replace defective shipments it had made and to destroy other goods, and also because of a loss of business resulting from the poor quality of the goods it shipped, all due to defects in the caps. The trial court gave judgment for the defendant both upon the complaint and the counterclaim, and the plaintiff has appealed.

All the evidence has been printed, and the plaintiff seeks a great many changes in the finding, but none of these are properly before us. The first three of its claims of error seek to substitute for almost the whole of the finding its own draft-finding or to add to the finding substantially all the paragraphs of that draft-finding. Not even in its brief does it point out under these claims of error any specific fault it claims in the finding as made or direct our attention to relevant portions of the evidence. Such an attempt to secure alterations in a finding in bulk cannot be considered by us. Norwalk Tire & Rubber Co. v. Manufacturers' Casualty Ins. Co., 109 Conn. 609, 610, 145 A. 44. The claims of error seeking more detailed corrections in the finding, contrary to our practice, do not assign the reasons upon the basis of which they are sought. Siller v. Philip, 107 Conn. 612, 614, 141 A. 872; Prendergast v. Drew. 103 Conn. 88, 90, 130 A. 75. But aside from these faults of practice, there is no respect in which we could make any substantial changes in the finding which would be of consequence as regards the decisive issues in the case. Thus the attack made upon certain statements in the finding that one England, a salesman for the plaintiff, had authority when securing the first order for the caps to make representations as to their quality, and, when trouble with caps developed, to promise the adjustment of damages suffered raised issues of little if any materiality, because the judgment upon the counterclaim was based, and the defendant now founds its claims, only upon an implied warranty, not upon an express one nor upon any promise of reimbursement for losses. That England did have authority to receive complaints of trouble caused to the defendant by the defective condition of the caps and to advise changes in design would be a proper inference from his position as salesman and the actions of the plaintiff following upon such complaints and the discussions he had with the defendant's representatives. In the finding that an inspection of the caps upon receipt would not disclose defects in them, the court is, of course, referring to such reasonable inspection as could be given upon receipt of such goods, not that which would be made in an attempt to find the cause of trouble after it had developed from the actual use of the caps nor one which the court might well regard as not reasonably adapted to the orderly conduct of the defendant's business, such as immersing each bottle upon which a cap was used in hot water before shipping it. So when the court found that the citric acid used in the defendant's products did not cause the bottles to leak, it evidently meant that, had the caps been proper ones, the leakage would not have occurred merely because of the contents of the bottles.

In so far as the right of the plaintiff to recover judgment for the caps included in the complaint is concerned, the defendant in its answer expressly admits the delivery to it of at least a part of them. It has not pleaded or proved that it ever returned or offered to return any of them or in any way intimated to the plaintiff that it had rejected them; but the plain inference from the finding is that it retained them from the time of the last delivery in August, 1926, until the trial of the case in November, 1929. By the provisions of the Sales Act, a buyer is deemed to have accepted goods when, after the lapse of a reasonable time, he retains them without intimating to the seller that he has rejected them. General Statutes, Rev. 1930, § 4668. It follows that there was an acceptance of the caps delivered as a matter of law. the Sales Act goes on to provide that the acceptance of goods does not discharge the seller from liability in damages or other legal remedy for breach of the contract, unless the buyer fails to give notice to the seller of the breach within a reasonable time after he knows or ought to know of it. General Statutes, Rev. 1930, § 4669. The defendant in its answer has not pleaded any breach of warranty or rescission of the contract for this or other cause, but relies solely upon the defective condition of the caps and their worthlessness to it. The claim is essentially one for failure of consideration. In the absence of any pleading of notice to the plaintiff of its breach of the contract within a reasonable time after acceptance of the caps, the judgment for the defendant upon the answer cannot be sustained. Williamsburgh Stopper Co. v. Bickart. 104 Conn. 674, 680, 134 A. 233.

The counterclaim alleges...