Rennolds v. Avery

132 Va. 335 | Va. | 1922

- Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

There are a number of questions raised by the assignments of error, but in the view we take of it we find one of them decisive of the case, and that is this:

1. Did the court err in giving instruction No. 3 at the request of the plaintiff and in refusing instruction “E,” asked for by the defendant, on the subject of the effect of the acceptance and appropriation by the defendant of a part of the piling which the plaintiff delivered on the landing and tendered as in performance of the contract on his part?

This question must be answered in the affirmative, in view of the testimony for the defendant on this subject which was taken from the consideration of the jury'by this action on the part of the court.

Instruction No. 3 in question is as follows: “The court instructs the jury that if they shall believe from the evidence that the defendant had agreed to purchase from the plaintiff eight hundred sticks of pine piling, and that said plaintiff hauled the said piling to the landing on Courthouse creek, ready for delivery, and notified the defendant that said piling was ready for delivery; and if the jury shall further believe from the evidence that the defendant, by his agent, C. C. Hall, inspected and accepted three hundred and thirty-nine sticks of said piling, and that the piling so accepted by the said defendant, through its agent, was of like quality and condition with the rest of the sticks of pine piling left on said landing, it there and then became the duty of said defendant to accept and pay for the rest and residue of said piling. And if the jury believe from the evidence that four hundred and sixty-one sticks of pine piling was left upon said landing of like quality with those accepted by said defendant, and that the said defendant has failed or refused to accept and pay for same, then you must find for the plaintiff and assess his damages at the contract price for said piling, less the price received by the plaintiff for the sale of said piling, provided you shall believe from the evidence that the said plaintiff sold and disposed of said piling to the best advantage and with proper diligence in' disposing of said piling.” •

Instruction “E” in question, is as follows: “The court instructs the jury that if they believe from the evidence there was an acceptance of a part of the piling by the agent, Hall, under the mistaken idea that the piling were injured by the fault of his principal, Rennolds, and he accepted the same according to usual custom, then there was no implied warranty^* that all the piling were accepted.” (Italics supplied.)

[1, 2] The plaintiff relies on Syer & Co. v. Lester, 116 Va. 541, 82 S. E. 122, to. sustain instruction No. 3. It is there held that “acceptance and appropriation of a part of a shipment of goods, with full knowledge of deficiency in their quality and quantity, implies an agreement for the acceptance of the whole.” But this rule may need qualification where a single shipment or alleged .delivery of goods is involved ; and certainly it has no application where more than the partial acceptance is induced by such a reason that there is no inconsistency between such acceptance and the refusal to accept the residue of the goods on the ground that they do not conform to the contract requirements with respect to quality, etc. Such was the character of the reason for the partial acceptance which the defendant claimed in the instant case. The question of fact, whether that was the true reason for such partial acceptance, should have been left to the decision of the jury upon all the evidence in the case. The defendant had the right to have the jury consider the testimony of Hall on that subject. The refusal of instruction “E” and the giving of instruction No. 3 in the form in which it was given took that question of fact, and all consideration of Hall’s testimony bearing upon it, entirely away from the jury. This w)as error and harmful error, because of which we feel constrained to reverse the case.

As to the other assignments of error:

As the other assignments of error present no novel question, and as the case will be reversed on the,ground above stated, we deem it sufficient to say as to such assignments of error that we find no merit in any of them.

The case will be reversed, and a new trial de novo awarded, to be had in conformity with the views above expressed.

Reversed.

* The word “warranty” is supposed to be a typographical error; the word “agreement” being doubtless the word actually used in the instruction.