109 Minn. 46 | Minn. | 1909
The appellant, a corporation engaged in wholesale merchandising at Chicago, on April 30, 1907, sold and delivered to respondent one hundred manufactured appliances, used in gasolene engines, and known as “Jewel spark plugs.” The plugs were manufactured by Pittsfield Spark Coil Company, of Pittsfield, Massachusetts, and put up in boxes at the factory, marked, “Guaranteed 90 days.” On June 19, 1907, the respondent, upon the claim that the same were
The respondent had judgment in its favor, based upon the finding that “on or about June 19, 1907, by mutual agreement between plaintiff and defendant, the sale of said eighty-nine spark plugs from plaintiff to defendant was rescinded and canceled. * * *” This finding is attacked by appellant as not sustained by the evidence. Appellant further assigns as error the admission of certain evidence hereafter stated.
In order to justify the finding above quoted it must be held that the shipment to the manufacturer at Pittsfield was as effective as if made to the appellant at Chicago. The treasurer and buyer of the respondent testified to the receipt of a letter from appellant, which he stated he could not find after searching the files of his office; but after the ruling that the contents of the letter might be given orally no attempt was made to do so, except that later in his testimony the witness said that the reason the plugs were returned to Pittsfield
Mr. Kennedy, the representative of appellant, testified, “It is my personal recollection that I directed the Charles A. Stickney Company to return any of the spark plugs that were defective to the Pitts-field Spark Coil Company if they wished to get credit for them,” and that whenever a defect is claimed “we always refer the party to the manufacturer for any credit they may claim.” No objection was made to this procedure when adopted by respondent. Upon the contrary, it was confirmed as to twenty-nine of the plugs returned, and the reason given for refusing credit for the remainder was, not because they were shipped to the manufacturer, but because the manufacturer claimed they were not defective in fact. If the plugs were defective, the respondent, under the testimony, had the right to return them, as it did, to the manufacturer, and would be entitled to credit upon its account with the appellant for their purchase price. The appellant by its own showing referred the question of the truth of any such claim to the Pittsfield Spark Coil Company, so that, if that company acquiesced in the claim, the result was a mutual agreement between these parties for such credit.
The respondent made its claim and submitted it to the Pittsfield Company upon June 19. It was the duty of that company, if it did not acquiesce, to repudiate the respondent’s claim within a reasonable time. It took no action until October 8, and retained the articles until December 14. The trial court was justified in holding that it had acquiesced in the claim made by respondent. Whether such .acquiescence be held to be a rescission of the original contract, or a
Error is assigned because of the admission of certain exhibits containing part of the correspondence between the parties. Some of these may have been immaterial but their admission- constituted no prejudicial error.
Judgment affirmed.