200 F. 379 | 2d Cir. | 1912
A voluntary petition was filed by Nathan in September, 1908.' In the spring or early summer of 1907 he made a contract with the Canasawacta Knitting Company for the delivery of a number of cases of cheap cotton underwear (to retail at 25 cents a garment), to be manufactured by the company and shipped to him during the coming season. He subsequently increased his order, and received in all 1,047 cases. He paid in full on October 5, 1907, for 831 cases, and the claim filed by the company is for a balance due on the remaining cases, $7,553.95. The trustee in bankruptcy filed a petition for re-examination of the'claim on the ground that there was a counterclaim against the company because the goods were not in accord with samples delivered to Nathan at the time of making the 'contract, were unmerchantable and defective, and that the bankrupt had suffered damages because of a breach of warranty in excess of $20,000. Testimony was taken before a referee, who found that the sale was not by sample, but in effect a sale by description, and that the goods were, on the whole, a proper delivery. He allowed the claim.
“A technical sale by sample is not accomplished whenevei* a specimen of the thing under consideration is exhibited or discussed during the progress of negotiation. There must be a definite intention on the part of both vendor and vendee that a definite article shall be the standard to which every delivery shall conform, and it is certainly not asking too much of any one who alleges such an unusual and strict warranty to produce the standard for inspection. The very fact that the standard sample cannot be produced, is ground of suspicion; for, when a man’s rights depend upon a particular piece of cloth (for instance), the fact that he did not keep that piece of cloth with sedulous care is ground for belief that it was not so important when the contract was made as the contracting party would wish the court to believe.”
We have no doubt that Nathan was told that an inferior material would be used in making both garments (the shirts and the drawers), that they would weigh less, that the standard for shirts would be this inferior material made up generally as the last year’s output was, that, for drawers, this inferior material (which they could not show him, because they had not yet decided just what it would be) would also be used, and that they would be finished like some drawers they showed him, without inside band, or suspender tape, with two buttons only, and single, instead of double, seated. We do not believe they gave him any samples, except subsequently, when they began to make the goods, and then sent many samples (like the goods) for him to use with liis customers.
There was evidence adduced upon the first hearing before the referee tending to show that many of the garments were defective; but we do not find this persuasive to a conclusion that they were unmer-chantable. They were of the cheapest class of underwear in the market, and were not intended or expected to have the perfection of higher grade goods. Nathan was told that his goods would be lighter in weight than other goods made by the same mill to be sold by it to jobbers. He disposed of all the goods except 42 cases, and although he testified that many of the goods lie sold were thrown back by his customers, it must be remembered that this was during the panic of 1907. when any excuse, however trivial, was availed of to avoid acceptance of goods, which embarrassed traders had agreed to buy. Moreover, we do not know on what representations Nathan sold to his own customers. 11 e may have said the goods would be substantially like those of the year before, although he had himself been distinctly told they would not be, on account of the rise in the price of cotton yarn. Moreover, the trustee had full opportunity on the rehearing to supplement any weakness in the prior testimony by more persuasive proof. The 42 cases which remained unsold were, as Nathan himself testified, not selected by him as poor goods, but were “just the ordinary run.” If
’We are of the opinion that the manufacturer’s implied warranty of merchantability did not survive the acceptance of the goods. But we do not place affirmance upon that ground, because there is some evidence as to conversations with a representative of the knitting company, which the District Judge held amounted to a waiver of the right to insist on a return of goods, alleged to be unmerchantable, promptly after delivery and opportunity to examine. Instead of discussing that testimony, and the questions of law arising as to the power of the particular representative (Frey) to bind the company to such a waiver, it seems better to decide, as we do, that the proof does not show that there was a breach of the implied warranty that the goods would be merchantable — a conclusion which was reached by the referee and expressed in his finding that “there was a good delivery of the goods contracted for.”
The order is affirmed.