Graff v. Foster, 67 Mo. 512

Graff v. Foster

67 Mo. 512 | Mo. | 1878

Norton, J.

— The petition of plaintiffs contains two counts, in the first of which they allege that defendants are indebted to them in the sum of $103.12, balance due on account of goods sold and delivered them on the 7th of February, 1873. It is alleged in the second count that defendants were indebted to plaintiffs in the sum of $690, for goods sold and delivered them on the 19th of May, 1873. Defendants, in their answer to the first count, deny any indebtedness and allege that one Blackman, a traveling salesman for plaintiffs, represented to them,'on the 6th of February, 1873, that plaintiffs had in their store, in Chicago, a choice and sound lot of .Valencia oranges, graded ns “ 420’s,”, which they would sell at a fair price; that, relying on the truth of said representations, defendants, on the 7th of February, telegraphed to plaintiffs at Chicago, Illinois, to send them, to St. Joseph, Mo., twenty-one boxes of Valencia oranges of the grade of “420’s;” that plain*518tiff' did not send the fruit ordered, but sent defendants twenty-one boxes of an 'inferior grade, which, when they reached defendants at St. Joseph, were unsound, frozen, rotten and decayed ; that they paid to plaintiffs, on the 7th of May, 1873, all that said fruit was reasonably worth. Defendants, after denying generally the second count, allege that, on the 19th of May, 1873, plaintiffs, who were doing business in Chicago, then and there exhibited to one of the defendants, a partner of the other defendants, engaged in business at St. Joseph, Mo., certain samples of two grades of oranges of good quality and in sound condition; that plaintiffs represented and warranted that said samples were fair specimens of the plaintiffs’ fruit which they then and there offered for sale; that defendants agreed to purchase some of said fruit if plaintiffs would deliver them fruit like said samples; that defendants* relying on said representations, purchased one hundred boxes of said fruit, at $4.25 per box, and forty boxes of another kind at $6.50 per box, which were to be shipped and delivered to defendants at St. Joseph. That said fruit* when it reached St. Joseph, did not equal said samples in quality or condition, and were so rotten and injured' that the whole shipment was worth only $50; that said oranges* if equal to the sample, were worth, at St. Joseph, $8 per box for one grade, and $10 per box for the other; that defendants soon after offered to return said oranges to said plaintiffs, which they refused, whereupon defendants, within a reasonable time, sold said fruit for the best attainable price, which was $50; that they expended in re-assorting the oranges fifty dollars, and they ask judgment for $1,200 damages. The answer was denied by replication, and, a trial being had, resulted in a verdict and judgment for plaintiffs on both counts of the petition, from which defendants have appealed to this court.

*5191.DELIVERY TO CARRIER, CONSTRUCTIVE DELIVERY TO CONSIGNEE: damage to goods in transit: acceptance and waiver. *518Exceptions were taken, during the trial, to various rulings of the court in admitting and rejecting evidence and *519in giving and refusing instructions, and which we are asked to review. The court, in its first instruction given tor plamtitts and excepted to, directed the jury that, under the pleadings and evidence, they would find for plaintiffs on their first count. The only real defense set up to the cause of action, contained in this court, was that one Blackman, a traveling salesman of defendants, on the 6th and 7th of February, 1873, represented that defendants had on hand, in Chicago, a choice stock of Valencia oranges in good, sound condition, which they would sell to defendants; and that, relying on these representations, they ordered, by telegraph, some of them to be shipped, and that when they reached St. Joseph they were not of the quality they ordered, but, at the time of delivery, were frozen, rotten and decayed. The evidence tended to show that said Black-man informed defendants, about the first of February, 1873, that plaintiffs had for sale Valencia oranges, in good condition, at their house in Chicago; that no purchase was then made of Blackman, but, several days afterwards,, on the 7th of February, they ordered, by telegraph, the plaintiffs to ship twenty-one boxes of Valencia oranges, of the grade of “420’s;” that plaintiffs, having none of that grade, at that time, on hand, purchased sixteen boxes of the grade, and shipped them, together with five boxes of the grade of “ 490’s,” an inferior grade, in good order — as-to quality and condition; that when they were received by defendants, in St. Joseph, they were in a frozen condition • that defendants made no objection, either on account of quality or condition of the goods, till long afterwards. Foster, one of the defendants, who testified as a witness, did not in his evidence sustain his answer in regard to the averment that the goods were ordered because of any reliance on the representations of Blackman, but, on the contrary, swears that he made no purchase of him, but after-wards sent the order direct to the plaintiffs. There was no contradiction in the evidence in reference to the fruit-*520being in good order and condition when it was shipped, and that, although they were in a frozen condition when they arrived at St. Joseph, they were received by defendants without objection. When the goods were ordered by defendants, they were constructively delivered to them and became theirs, subject only to the right of stoppage in transitu, when -plaintiffs delivered them, with proper instructions, to the usual carrier, for defendants. Comstock et al., v. Affœlter, 50 Mo. 411; 2 Kent 499. The February shipment of fruit, the evidence clearly shows, was accepted and received by defendants without objection or notice to plaintiffs that it was deficient either in quantity or quality, or that it was not of the grade they had ordered. Having been thus received by defendants, with a knowledge of its deficiency as to grade, without objection, they waived all right of future objection on such grounds, there being an eutire failure of proof' to establish a warranty. 3 Parsons on Con. 47; Stevens et al. v. Mackay et al., 40 Mo. 224. Hence we think the direction given to the jury in the first instruction was proper, and, for the reasons authorizing that declaration to be given, the 1st, 3rd, 4th and 5th instructions asked by the defendants were properly refused, as they were in contravention of the principles above laid down. Defendant was asked to state what was the condition of the February shipment of oranges when received by them. This evidence was properly rejected because the real question was as to what their condition was when shipped, and not when received, and the acceptance of them with a knowledge of their condition and that five boxes were of a grade inferior to those ordered, without complaint, is to be taken as a waiver of their right to object afterwards, there being no warranty. 49 N. Y. 321; 39 Conn. 31.

2. WARRANTY OF QUALITY: sale by sample. The only defense set up to avoid recovery on the cause of action stated in the second count of the petition, was an alleged breach of warranty. Theinstruc- '. , , „ ,, tions given on this branch or the case are

*521numerous and lengthy, and too voluminous to be incorporated herein. Condensing and stripping them of all verbiage, the jury were substantially told by them, that plaintiffs were entitled to recover the value of the oranges sued for in said count, with interest from time of demand at six per cent., unless they believed from the evidence that plaintiff's warranted them to be of sound and good quality; that the burden of proving a warranty was on the defendants; that in order to constitute a warranty it was not necessary that plaintiffs should have used the word warranty, but if the words actually used by plaintiff's signified an undertaking on their part that the oranges sold defendants were what they were represented to be, that would be sufficient. On the part of defendants the court instructed the jury substantially that if plaintiff's exhibited to defendants samples of oranges as fair specimens of the quality of those offered for sale, and agreed to deliver them oranges equal in quality to those shown, and relying thereon defendants ordered a quantity of oranges like such samples which plaintiffs undertook to deliver, that this was a warranty that the oranges to be delivered should equal in quality and condition those exhibited. The instructions, we think, fairly submitted the issue made in the pleadings to the jury, and as favorably as the evidence warranted for defendants.

3. STATUTE OF FRAUDS: pleading. The eighth instruction was properly refused because the same principle was embraced in those given. So with the twelfth, which asked the court to direct the jury to find for defendants unless they believed there was some note or memorandum in writing of the contract, or a delivery of the goods. This instruction was properly refused, first, because the statute of frauds was not pleaded, and second, because it had nothing to do with the case as the pleadings admitted a delivery. Sherwood v. Saxton, 63 Mo. 78; Rabsuhl v. Lack, 35 Mo. 316; Gardner v. Armstrong, 31 Mo. 535.

The eleventh instruction was properly refused because it was misleading in not defining the place of delivery of *522the goods. The instruction given by the court- in regard to the extent of defendants’ liability if the jury found that there was a warranty of the goods and a breach thereof, though subject to criticism, and perhaps not sufficiently comprehensive, could not have injured defendants inasmuch as it is evident from the verdict of the jury that they found that there was no warranty.

"We think, on the evidence and the law that the judgment was for the right party, and it will be affirmed, with the concurrence of the other judges.

Affirmed.