73 W. Va. 669 | W. Va. | 1914
The evidence discloses that defendant ordered from plaintiffs a ear of 600 bushels of corn at 65 cents per bushel and 400 bushels of oats at 52 cents per bushel; that upon this order a car containing a greater quantity of each kind of grain was shipped and an invoice showing the greater quantity mailed to defendant; that neither when the invoice was received by defendant, nor later when the ear arrived at the destination point, did defendant give notice to plaintiffs of any objection
Defendant persisted in his refusal to take the grain. Plaintiffs at last proposed that defendant should take from the car the amount he had ordered and that they would dispose of the residue. Notwithstanding this offer, defendant still refused to take any of the grain. Plaintiffs thereafter sold the grain to the best advantage and charged defendant with the difference between the amount received and the amount the grain was worth at the contract price with defendant. Upon the trial of this action, before the court in lieu of a jury, plaintiffs recovered judgment against defendant for the _ amount so charged against him.
The judgment is right. It must be conceded that objection on the part of defendant to receiving the grain because plaintiffs had not complied with a former contract is no ground upon which defendant can excuse himself from complying with this latter distinct contract of purchase. And it is quite apparent in the case that the matter of quantity was a remote and secondary consideration by defendant. He deliberately stated a single objection to receiving the shipment. That single objection was the alleged failure of plaintiffs to comply with a former contract. He expressed a willingness however to take the full shipment if his claim made under the
Moreover, defendant persisted in a baseless objection until a reasonable time had expired for objecting on the ground of an excess of quantity. Though a purchaser of goods does not order the quantity delivered to him, a sale of the whole will be implied where on receiving the goods the purchaser does not within a reasonable time repel the implication by returning the goods or notifying the seller that he will not accept them because of the excess of quantity. Failure to return, or to give notice of non-acceptance, amounts to an acceptance. Bartholomae v. Paull, 18 W. Va. 771; Thompson v. Douglass, 35 W. Va. 337; Ford v. Freidman, 40 W. Va. 177. In reason, and in justice to plaintiffs’ rights, defendant could not delay so long as he did and then rely on an objection to the quantity. He impliedly accepted the full quantity, subject only to the baseless objection to which we have referred. Indeed his letters of objection to plaintiffs plainly show that he had no objection to the quantity if he could have the alleged breach of a former contract taken into consideration in settlement.
Defendant’s claim of unliquidated damages growing out of the alleged former contract was of course properly rejected in this action.
Affirmed.