5 Conn. Cir. Ct. 597 | Conn. App. Ct. | 1968
This is an action to recover the purchase price of merchandise sold to defendant by plaintiff. Plaintiff is a manufacturer of men’s clothing, with a principal place of business in L-os Angeles, California. Defendant is the owner and operator of a men’s clothing store, located in Westport, Connecticut, known as “The Rage.”
Defendant sent a letter, dated December 12, 1966, and received by plaintiff in Los Angeles on December 20, 1966, reporting the refusal of the truck driver to make the delivery inside defendant’s store. This was the first notice to plaintiff of the nondelivery. The letter alleged that defendant needed
The sole special defense pleaded was, “The Plaintiff refused to deliver the merchandise into the Defendant’s place of business.” Therefore defendant claimed that he is not liable for the subsequent loss or disappearance of the shipment, or the purchase price thereof, and that the risk of loss remained with plaintiff.
The basic problem is to determine the terms and conditions of the agreement of the parties as to transportation, and the risks and hazards incident thereto. The court finds that the parties had originally agreed that the merchandise would be shipped by common carrier F.O.B. Los Angeles, as the place of shipment, and that the defendant would pay the freight charges between the two points. The notations on the invoices, and the bill of lading, previously described, make this clear. The use of the phrase “F.O.B.,” meaning free on board, made this portion of the agreement not only a price term covering defendant’s obligation to pay freight charges between Los Angeles and Westport but also a controlling factor as to risk of loss of the merchandise upon delivery to Denver and subsequently to Old Colony as the carriers. General Statutes § 42a-2-319 (1) (a); Uniform Commercial Code § 2-319, comment 1; Chase Manhattan Bank
It is highly significant that all the invoices sent to defendant contained the explicit notation “Groods Shipped at Purchaser’s Bisk.” This was, initially, a unilateral statement by plaintiff. The validity of this phrase, as expressing the understanding of both parties, was, however, never actually challenged by defendant, at the trial or in his brief. The contents of the invoices therefore confirm the statutory allocation of risk of loss on F.O.B. shipments.
The arrangements as to shipment were at the option of plaintiff as the seller. § 42a-2-311 (2). Plaintiff duly placed the goods in possession of a carrier, to wit, Denver, and made a reasonable contract for their transportation, having in mind the nature of the merchandise and the remaining circumstances. Notice of the shipment, including the F.O.B. provisions, was properly given to defendant, as required by law, pursuant to the four invoices. § 42a-2-504; Uniform Commercial Code § 2-504, comment 5.
Defendant has urged that, since plaintiff pressed a damage claim against the carrier, this constitutes an assertion of an ownership interest by plaintiff, and responsibility for loss thereof, inconsistent with plaintiff’s present claim against defendant. The court does not agree. Even though the risk of loss,
The court entertains substantial doubt about the credibility of the defense. Defendant initially professed an urgent need for the merchandise, for holiday sales. When, however, the delivery was tendered, on December 12, 1966, only some two weeks prior to Christmas, defendant, acting by his wife, saw fit to refuse the merchandise for the alleged reason that the truck driver was obligated to carry the cartons inside defendant’s door. The defense arising out of the refusal is without merit. Defendant knew, or should have known, that his rejection exposed the shipment to time consuming delays and disputes. Hence, delivery in time for holiday business was actually frustrated, not by plaintiff, but rather by the action of defendant and his agent, based on a disagreement over a relatively minor item. Wholly apart from the conclusion, previously stated, that such refusal was at the sole risk of defendant, the court finds that defendant’s conduct was wrongful, arbitrary, and unreasonable, under all the circumstances.
In view of defendant’s wrongful rejection, following the shifting of the risk of loss to him, he is liable to plaintiff for the entire purchase price of the merchandise. Thus, § 42a-2-709 provides in part: “(1) When the buyer fails to pay the price as it becomes due the seller may recover . . . the price (a) ... of conforming goods lost or damaged within a com
The issues are found for plaintiff. Judgment may therefore enter for plaintiff to recover of defendant the sum of $2216, plus taxable costs.