HOOKER
J.
The
defendant, a dealer in Detroit, contracted for the delivery
to him of 13 cars of potatoes. The contract was made by wire
and consisted of the following telegrams:
"Detroit,
July 7, 1892. Name lowest, five cars choice Rose and five
Chillies, delivered Detroit. W. C. Robb."
"Norfolk, July 7, 1892. Will sell five cars
potatoes, delivered Detroit, two-twenty bbl., mostly Rose.
Will ship as soon as possible. If wanted, wire quick.
Williams Bros."
"Detroit,
July 7, 1892. Ship eight quick. Wire numbers and route. W. C.
Robb."
"Detroit,
July 8, 1892. Ship potatoes via Mich. Central, at Toledo. W.
C. Robb."
"Norfolk,
July 8, 1892. Ship two cars C., and O. three cars, Penn.
railroad. Will try and ship some to-morrow. Draft with bill
lading. Williams Bros."
"Detroit,
July 9, 1892. Make our order fifteen cars. Ship four or five
a day. We will pay draft. Reference Preston National Bank. W.
C. Robb."
"Norfolk,
July 9, 1892. Ship five cars yesterday, same to-day. Ship
balance Monday. Draw draft for amt. Williams Bros."
"Norfolk,
July 11, 1892. Shipping four cars to-day. Must we ship the
other car Wednesday? Answer. Williams Bros."
"Detroit,
July 11, 1892. Suit yourself. Wire if you ship. W. C.
Robb."
"Norfolk,
July 13, 1892. Shipping car potatoes to-day; last contracts.
Williams Bros."
Two
cars arrived in due season, and were unloaded by the
defendant, plaintiffs' sight draft being paid for the
purchase price.
The
following correspondence by wire and letter passed between
the parties:
"Detroit,
July 15, 1892. Two cars unloaded. Stock runs poor; lots
rotten. Can't pay drafts till unloaded. We bought
delivered. W. C. Robb."
"Norfolk, Va., July 15, 1892. Pay drafts. All
rotten potatoes turn over to D. O. Wiley & Co. they will pay
for them, or you can draw on us for difference. Answer.
Williams Bros."
"Detroit,
July 16, 1892. Will pay drafts, two dollars barrel. Sell for
your acct. If not willing take our word for poor stock, we
can buy plenty. Wire quick. W. C. Robb."
"Detroit,
July 17, 1892. Will pay drafts, two dollars bbl. Wire back to
that effect. First two cars unloaded; worth no more; too much
poor stock. Potatoes here subject to your order. Wire quick.
Weather hot. Should be unloaded quick. W. C. Robb."
"July 17, 1892. If convenient, meet me Hotel Normandie;
arrival Mich. Central tonight. C. H. Williams."
"Detroit,
Mich., July 18, 1892. W. C. Robb, Esq., Detroit, Mich.-Dear
Sir: You make objection to receiving the potatoes shipped you
under our contract by telegram of recent date, which called
for fifteen carloads, two of which you have already accepted
and paid for, on the ground that the potatoes at the Michigan
Central yard are not in merchantable condition. Being unable
to supply any deficiency in the potatoes shipped, at once, we
herewith offer to deliver, as per contract, thirteen car
loads of potatoes of the quantity contracted for. Please
signify, on receipt of this, your conclusion as to whether
you will accept or reject this offer. In case of your failure
to accept, and owing to the perishable nature of the goods,
we shall have the potatoes sold at the best market price,
crediting you with proceeds thereof. Yours truly, [Signed]
Williams Bros."
"Detroit,
July 18, 1892. Williams Bros.-Gentlemen: Your favor of this
date to hand. We are ready at all times to carry out our
contracts. The potatoes at depot are not such stock as we
bought; consequently will not accept them. We
did take two cars to store; they seemingly all right on top,
but, when we began to empty them, found that they were a very
inferior lot, being small in size, badly decayed, and not
merchantable. Yours truly, W. C. Robb."
The
plaintiffs' agent went to Detroit, and, finding that all
of the potatoes contracted for except two cars had arrived
arranged with a local dealer to supply a sufficient quantity
of potatoes to make good any deficiency that might exist by
reason of nonarrival of the two cars or defects in any of the
potatoes. He then saw the defendant, and offered to deliver
to him the full amount of potatoes ordered. The defendant
refused to accept them, whereupon the plaintiffs' agent
sold the potatoes for the best price obtainable, and this
action was brought. The plaintiffs claimed damages for the
defendant's refusal to accept the potatoes. The defendant
sought to recoup for alleged defects in the two car loads of
potatoes received. The court instructed the jury that, by
receiving the two car loads after an opportunity for
inspection, the defendant accepted the same, and stated,
further, that unless the plaintiffs delivered the requisite
number of potatoes called for by the contract within a
reasonable time, and at the price agreed upon, the defendant
was under no obligation to receive the same, but that, if
they offered to deliver the same within a reasonable time for
such price after having arranged to procure the necessary
quantity to supply defects, the defendant was bound to
receive the same, and in such case, if he refused to accept
them, the rule of damages would be the difference between...
