White v. Schweitzer

• Decision Date: 13 November 1917
• Parties: WHITE v. SCHWEITZER et al.
• Court: New York Court of Appeals Court of Appeals

221 N.Y. 461

117 N.E. 941

WHITE

v.SCHWEITZER et al.

Court of Appeals of New York.

Nov. 13, 1917.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by William E. White against Nathan Schweitzer and others. From a judgment of the Appellate Division (163 App. Div. 898,147 N. Y. Supp. 1149), affirming judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

Hartwell Cabell, of New York City, for appellant.

Max D. Steuer, of New York City, for respondents.

McLAUGHLIN, J.

The action was brought to recover the purchase price of a carload of turkeys shipped by plaintiff's assignor, the Keystone Commercial Company, from Maysville, Ky., to the defendants in New York City. They were shipped on November 17, and arrived November 23, 1908. There was a dispute between the parties as to the terms of sale; that is, whether the turkeys were to be ‘dry-picked’ or ‘scalded.’ Those shipped were scalded, and the verdict has settled the disputed question in favor of the defendants. When the car arrived in which the shipment was made, the turkeys were examined by defendants, and it was then discovered they were scalded, instead of dry-picked, and also that they were in bad condition. About half past 7 o'clock in the morning of that day the defendants wired plaintiff's assignor at Maysville:

‘Your car arrived scalded, instead of dry-picked. Stock sticky and cannot use it. Wire instructions.’

About two hours later on the same day, not having received an answer to the first telegram, they sent another, saying:

‘Having railroad inspector examine car. Will put in claim for you. Have turned car over to house that can sell such stuff.’

Both telegrams were delivered to plaintiff's assignor at the same time, and neither of them was answered. At the time the second telegram was sent defendants delivered the turkeys to commission merchants for sale, and the same were on that day sold for $729.69, which sum was subsequently tendered to the plaintiff's assignor, and by it refused. At the time the turkeys were delivered to the commission merchants, one of the defendants wrote plaintiff's assignor, confirming the telegrams, and saying, among other things:

‘I do not know just how I will make out with the sale of these goods, but in the event of any deficiency I will expect you to make good.’

[1][2] The principal question presented upon the appeal is whether the trial court erred in charging the jury, to which an exception was taken, that there was no evidence upon which it could find that the defendants accepted the turkeys. I am of the opinion the exception was well taken. Harrison v. Scott, 203 N. Y. 369, 96 N. E. 755,38 L. R. A. (N. S.) 1035;Norton v. Dreyfuss, 106 N. Y. 90, 12 N. E. 428;Isbell-Porter Co. v. Heineman, 126 App. Div. 713,111 N. Y. Supp. 332. It is not at all times easy to determine whether a purchaser's retention, sale, or disposition position of property constitutes an acceptance, but as a general rule it must be determined as a question of fact. Burdick on Sales (3d Ed.) 155. It may be, and usually is, indicated by exercising acts of ownership; e. g., where one resells the goods, as such action would be improper except on the assumption that the buyer had acquired title. That necessarily indicates an assent on the part of the buyer to become the owner. Williston on Sales, § 483. If the article purchased is not in accordance with the contract, then the purchaser must, upon discovering that fact, do nothing inconsistent with the vendor's ownership. Brown v. Foster, 108 N. Y. 387, 15 N. E. 608;Duluth Log Co. v. Hill Lumber Co., 110 Minn. 124, 124 N. W. 967. So it has been held that an acceptance is made out by action of the vendee in insuring the goods or offering to mortgage them (Georgia v. Augusta, 74 Ga. 497), or by loaning them (Hensen v. Beebe, 111 Iowa, 534, 82 N. W. 942), or by directing an agent to sell them (Brown v. Nelson, 66 Vt. 660, 30 Atl. 94), or, while disclaiming a purchase, permitting a third person to select and retain a portion of the goods upon his promise to account to the seller for them (Bartholomae v. Paull, 18 W. Va. 771). Mere complaint by the vendee that the goods do not come up to the contract does not amount to a rejection. Something more is...