88 W. Va. 303 | W. Va. | 1921
On the 2nd day of October, 1917, the plaintiff’s representative called at the storeroom of the defendant in the city of Charleston and exhibited to defendant’s general manager and the person in charge of the ladies’ waist department certain samples of ladies ’ waists, with a view of making sales of this character of goods to the defendant. After an inspection of these samples defendant’s general manager gave an order to plaintiff’s representative for two dozen white waists, stock No. 1138, at the price of $2.25 each; two dozen flesh-colored waists, stock No. 1138-, at the price of $2.25 each; two dozen white waists, stock No. 1142, at the price of $3.00 each; two dozen flesh-colored waists, stock No. 1142, at the price of $3.00 each; one and one-half dozen white■ waists, stock No. 2074, at the price of $2.25 each; one and one-half dozen flesh-colored waists, stock No. 2074, at $2.25 each; one and one-half dozen white waists, stock No. 1120, at $3.00 each; one and one-half dozen flesh-colored waists, stock No. 1120, at $3.00 each; and one-twelfth dozen white waists, stock No. 1140,' at $3.50 each. Of this order the two dozen white waists and two dozen flesh-colored waists of stock No. 1138, and the one and one-half dozen white waists and one and one-half dozen flesh-colored waists of. stock No. 1120 were to be shipped at once, and the remainder of the order in two weeks. A very few days after this order was given the waists which were to be shipped at once, as aforesaid, together with the two dozen flesh-colored waists of stock No. 1142, were received by the defendant. Upon their receipt the package was opened and examined by defendant’s general manager and the woman in charge of its waist department, and, according to their testimony, the one and one-half dozen white waists of stock No. 1120 and the one and one-half dozen flesh-colored waists of stock No. 1120 were inferior in quality to the sample from which the order was made, and were also different in style, and for this reason the defendant immediately returned these two lots of waists to the plaintiff, and notified it of such return and
The principal contention of the plaintiff is that the defendant must pay for all of the goods shipped to it, inasmuch as it received part of these goods and rejected the residue; that its reception of any part thereof bound it to receive all of them. The issue between the parties as to whether or not the waists that were returned were of the kind and quality
If the consideration of a contract is single, the contract is,
In 2 Elliott on Contracts, § 1544, the same doctrine is stated a.s follows: “The divisibility of the subject-matter, while not controlling, is frequently of importance in determining the intention of the parties. Generally when the part to be performed by the promissor consists of several distinct items and the price to be paid is apportioned to each item according to its value and not as a part of a lump sum, the contract is considered as several. ’5
And Professor Williston in his work on Contracts, vol. 2, § 1719, also announces the same doctrine: “The bargain though contemplating but a single delivery may contemplate several distinct sales, several dissociated things being ordered or contracted for, each for a distinct price. Here acceptance of part will not justify any implication of assent to become owner of the remainder, or of discharge of the seller from his legal duty with reference to the remainder. If some of the goods tendered are not in accordance with the contract, the buyer is generally held entitled to accept such of the articles tendered as fulfill the seller’s obligation and reject those which do not. ’ ’
These texts are well supported by the authorities. Brown v. Exeter Machine Works, 60 Pa. Sup. Ct. 365; Amsler v. Bruner, 173 Ill. App. 337; Barlow Mfg. Co. v. Stone, 200 Mass., 158; Young & Conant Mfg Co. v. Wakefield, 121 Mass. 91; West End Mfg. Co. v Warren Co., 198 Mass. 320; Pierson v. Crooks, 115 N. Y. 539; Thompson v. Fester (Ind.) 123 N. E.
We conclude that the contract in this case was severable, at least to the extent that the defendant undertook to so treat it. It will be noted that it did not break any one of the items contained in the order, bnt either rejected each item entire, or accepted it entire. Whether each separate garment would constitute a separate part of the contract we are not called upon to say. It may be that a contract such as this could only be'severed to the extent that was done by the defendant in this case, that is, into the separate items contained in the order, and not into the separate articles composing each of these items.
The plaintiff relies upon the case of Manss-Bruning Shoe Co. v. Prince, 51 W. Va. 510, as controlling this case in its favor, and point three of the syllabus in that case would seem to justify this conclusion. The facts in. that case, however, were exceptional. Prince’s conduct in regard to accepting or rejecting the goods was equivocal. He did not, as the plaintiff did here, upon finding that they did not answer the requirement of the contract immediately reject those lots which were not of the quality bought, and return them, but he entered into negotiations with the shoe company in regard thereto, and even when he did finally return the same he kept some of the lots, and some of the very shoes which he claimed were of inferior quality. Under these exceptional circumstances the court held this conduct amounted to an acceptance of the whole. The syllabus of the case must be read in the light of the facts which the court was considering, and so construed. The statement contained in point three is broader than the facts in that case required, and in considering it it should be limited in its meaning as applying to the case
The plaintiff insists that the question as to whether or not this contract was severable or entire was one of law for the court, and that the court erred in submitting the same to the jury. We agree with the plaintiff in this conclusion. Under the facts proven here there was no question to be submitted to the jury as to the entirety or severability of this contract. It was one of construction for the court. The jury, however, gave the contract the only construction which we think it will bear, and the action of the court in submitting the question to the jury has resulted in no injury to the plaintiff.
The plaintiff also claims that the court erred in instructing the jury that the burden was upon it to establish that the goods which it furnished was of the kind and quality sold. We do not think there is any error in this. This suit was brought to recover goods shipped upon a contract, and it is the ordinary rule of practice that when one seeks to recover upon a contract for the sale of goods he must show that the goods delivered by him in fulfillment of the contract were of the kind and quality stipulated for.
It is also insisted by the plaintiff that it is entitled at least to recover the discount which the defendant deducted from the invoice price of the goods accepted by it. We cannot agree with this conclusion. A check was sent to pay for these goods within the period allowed for discount, and was rejected by the plaintiff, not because it was a check, but because the defendant, according to its theory, must pay for all of the goods. Under this state of facts, the defendant having made good its claim that the merchandise rejected was not of the quality purchased by it, the plaintiff was in default in not accepting the payment at the time it was offered, and cannot, by its refusal so to accept it, deprive the defendant of the discount allowed by the contract.
Affirmed.