Williamsburgh Stopper Co. v. Bickart

• Decision Date: 30 July 1926
• Citation: 134 A. 233,104 Conn. 674
• Court: Connecticut Supreme Court
• Parties: WILLIAMSBURGH STOPPER CO. v. BICKART.

134 A. 233

104 Conn. 674

WILLIAMSBURGH STOPPER CO. v. BICKART.

Supreme Court of Errors of Connecticut.

July 30, 1926

Appeal from Superior Court, Fairfield County; John W. Banks, Judge.

Action by the Williamsburgh Stopper Company against Monroe L Bickart to recover the purchase price of certain crowns or bottle stoppers.From judgment for plaintiff, defendant appeals.No error.

The record discloses that the plaintiff and the defendant by the transfer, duly made of certain contracts, became obligated under a written contract, which provides that the Williamsburgh Stopper Company agrees to sell, and M. L Bickart, of Stamford, Conn., agrees to buy, a specified quantity of crowns, and that the time of delivery should be " as the requirements of the buyer may demand in his business from April 1, 1923, to December 31, 1923, a reasonable notice of delivery to be given the seller for each shipment."

The terms were stated to be:

" Payable in 30 days from date of invoice or 2 per cent discount for cash, if remitted within ten days from date of shipment.If buyer fails to make payment according to the terms of this contract, seller shall be under no obligation to make further shipments, and may at its selection at any time cancel all or any part of buyers' unfilled specifications with seller, and proceed for the collection of the amount unpaid on shipments previously made.

The seller guarantees the crowns will be strictly of the best quality; also guarantees against any decline in their prices or the buyer may without prejudice or other lawful remedy cancel this contract."

And upon the contract appeared:

" This contract is not transferable without the consent of the seller.

It is hereby agreed that no claim for any cause will be made except within thirty days after receipt of goods, and that the seller shall not, in any event, be liable for damages arising from the use of material sold thereunder."

The complaint alleges the sale and delivery by the plaintiff to Bickart of stoppers pursuant to the terms of the agreement, during August, September, and October, 1923, which at the agreed prices amounted to $7,627.56, and further alleged that for credit and allowances during such months the defendant was entitled to a credit of $151.21, and that the plaintiff has demanded the balance of $7,476.35 of the defendant, who has not paid it.

The defendant in his answer denied that the plaintiff has sold and delivered such goods, and that he has accepted them.He also sets up in connection with his answer a counterclaim to the following effect:

Counterclaim:

(1) Pursuant to the terms of the contract set up in the complaint, it was duly agreed and provided that, upon a reasonable notice of delivery being given to the plaintiff by the defendant for each shipment, then and thereupon the plaintiff would make prompt delivery of each shipment as and when ordered, and, further, that the plaintiff would, and did, guarantee the crowns to be strictly of best quality.

(2)The plaintiff knew that the defendant was purchasing the crowns for resale throughout the United States, and that prompt deliveries would be required, and that it must keep on hand a stock of crowns sufficient to supply the customers without delay.

(3)The plaintiff failed to make prompt shipment of each order, and failed to comply with the contract and deliver crowns strictly of the best quality as agreed.

(4) By reason of these failures to deliver and the defective quality of the crowns, the defendant was greatly damaged, and his valuable crown business seriously injured.

The defendant claims by way of set-off $15,000 damages, and demands judgment therefor for so much thereof as he may be entitled to over and above the plaintiff's claim.

The plaintiff denied the allegations of the counterclaim, and filed a second defense as follows:

The contract annexed to the complaint provided:

" It is hereby agreed that no claim for any cause will be made except within thirty days after receipt of goods, and that the seller shall not, in any event, be liable for damages arising from the use of material sold hereunder."

(2)The defendant never made any claim for any cause against the plaintiff within 30 days after receipt of any goods by him, under the contract, nor as alleged in the complaint.

The defendant admitted paragraph 1, and denied paragraph 2, of the second defense.

The record further discloses that the defendant was a jobber in the crown business, and crowns were, pursuant to orders and directions of the defendant, shipped to various of the defendant's customers by the plaintiff.

Raymond E. Hackett, of Stamford, for appellant.

Norris E. Pierson, of Stamford, for appellee.

CURTIS, J.(after stating the facts as above).

This action was begun in November, 1923, after the refusal of the defendant to pay for the crowns delivered during August, September, and October, 1923, and after the refusal of the plaintiff to continue to make shipments after defendant's refusal to pay, made in accordance with the provisions of the contract, to the effect that the buyer's failure to make payments according to the terms of the contract relieves the seller from any obligation to continue shipments.No question arises as to the validity of this conduct of the plaintiff.

The jury rendered a verdict for the plaintiff to recover $8,410.89.The defendant moved that this verdict be set aside as contrary to the evidence.This motion the court denied.

The questions arising upon the appeal relate to the denial of the motion to set aside the verdict, to the charge as made, and to the refusal to charge as requested.

As appears from the record and the brief of the defendant, he never personally received delivery of any of the crowns called for by the contract, but they were in each instance shipped and delivered pursuant to the defendant's instructions, direct to the defendant's customers, who were located in various parts of the United States.The defendant thus never had an opportunity to personally inspect the crowns when delivered to his customers, and they accepted and used the crowns without his inspection, and during August, September, and October, 1923, the plaintiff sold to the defendant and delivered to his customers various consignments of crowns, the contract purchase price of which was $7,476.35.These crowns were accepted by the defendant's customers, and used as far as possible, and they paid the defendant for all of the crowns, with the exception of eight shipments amounting to $568.50.These customers, he offered evidence to prove, refused to pay the defendant for the eight shipments because of the poor quality of the crowns, and because of delayed deliveries.

The defendant refused to pay the plaintiff for the crowns sold and delivered to his customers during August, September, and October, 1923, amounting at the purchase price to $7,476.35, because: (1) The crowns did not comply with the express warranty in the contract that they should be " strictly of the best quality" ; (2) that they were not delivered in accordance with the requirements of the defendant.

The above facts show that a delivery of crowns to the defendant's customers was a delivery to him.Welshausen v. Charles Parker Co.,83...