124 Va. 346 | Va. | 1919
delivered the opinion of the court.
This controversy arises out of a contract which is evidenced by two letters, one dated October 22, 1915, from Newport News, Va., addressed by the Rosenbaum Hardware Company (hereafter called the defendant) to the Paxton Lumber Company (hereafter called the plaintiff), at Bristol, Tennessee, reading thus:
“Your telegram of this date received. You will please enter our order for one carload of 4x6 white oak for bending purposes to be delivered within 30 days from this date. Specifications as follows:
“Quality: To be selected white oak, straight grained and free from knots, heart centers, shake, wormholes, sap and other defects except as noted below.
“Defects allowed: Some pinworm will be allowed providing it does not damage the piece for the purpose for which it is intended.
“At $60.00 per M feet on the Newport News freight rate basis. We desire this lumber shipped to our order at Norfolk, Va., and should there be any difference in the Norfolk and Newport News rate of freight to charge or credit as the case might be.”
And the reply thereto, dated October 29, 1915, reading thus:
“Yours of the 26th duly received, and we are pleased to enter your order for:
“1 car 4x6 white oak for bending purposes; $60.00. Delivered to Newport News rate of freight.
“We have marked up shipping instructions- as follows:
Rosenbaum Hardware Co.,
Norfolk, Va.
N. & W. delivery.
“We note your request to ship a small car by November 4th, which we are taking up with our mill but will be unable to hear from them before Monday.
The lumber reached Norfolk in due course, was sent to the United States Navy Yard for use by the government, and was there rejected by the government inspector; whereupon the defendant promptly, on January 18, 1916, wrote as follows to the plaintiff:
“We regret to advise that the 4x6 bending oak that you shipped on car T. P. & W. No. 2142, has been rejected at the Navy Yard, Portsmouth, Virginia. We have not full information regarding this matter, we are writing Mr. McKann by this mail .•with request that he forward to you full particulars.”
And on January 22, 1916, as follows:
*350 “Your letter of the 21st instant received. The Navy Yard people rejected the car of bending oak on account of worm holes, rots and knots. Our Mr. Poarch looked at this stock and from the best information that he could get, not more than one-fourth of this stock would pass. To pick the lumber to get out such a small amount would make it rather expensive' and besides would damage the sale of the lumber as a whole. We believe the best thing to do is to dispose of this lumber as an entire lot, we would like to know what you want us to do in the matter. In the meantime we hope that you will not forget the fact that the bending oak is urgently needed according to the order placed with you, and unless you can assure us that it will be shipped promptly :we will be forced to go on the market and buy this stock against your account.”
To which the plaintiff replied on January 26th thus: “Yours of the 22nd duly received and beg to advise that we had previously cut two cars of this stock which were satisfactory and the car shipped you was cut full to size, straight grained and had very few pin worm holes in it.
“We will ask that you take care of our interest in this matter, having as much of the stock accepted as possible and taking care of the balance so that it can be gone over and disposed of later to the best advantage.
“With reference to the resale you suggest we would hardly know just where to place this, but possibly you would or if the McKann people are used to handling this class of stock they must know some use of the rejects.
“We would be glad to have your best offer covering them.
“The McKann Company advised us under date of the 19th that the Navy Yard would move this stock by January 28th at our expense, if instructions were not given, so that if you can help us in making some satisfactory disposition of the stock, in the meantime, we will appreciate it.
After having apparently by this letter of January 26th acquiesced in the rejection of the lumber, and it had been transported from the Navy Yard to Newport News, the plaintiff claimed that when the letter of January 26th was written it was without full information as to the character of the inspection which had been made, and that therefore it was not,bound by its letter; that the lumber had been accepted by the purchaser; and that in the absence of a proper inspection the defendant owed the full amount of the purchase price. This claim appears to be partly based on the following printed paragraph, which appears at the top of its letter heads:
“All agreements are contingent upon car supply, strikes, accidents, or other delays from causes beyond our control. No allowance from invoices will be made without certificate of National Hardwood Lumber Association. Quotations subject to change without notice. Acceptance of orders subject to prior sale.”
It is also claimed that if an inspection by a representative of the National Hardwood Lumber Association was unnecessary, then that some other proper inspection should have been made.
The lumber remained upon the yard of the defendant at Newport News and was the subject of certain other interviews and correspondence between the parties, the effect of which tends to show that the plaintiff insisted upon having a formal inspection and grading of the lumber, and the defendant, while agreeing thereto, never had such inspection made, though there is one letter in the record, dated February 23, in which the defendant states: “We will do our utmost to obtain the best results, but the per cent that will pass for the purpose for which you shipped this lumber is so small it is hardly worth while to try to get the government inspector to accept it. The additional cost of handling and other charges will amount to more than the advance price on what they accepted, in addition to this it will depreciate the balance of the stock to take out the clear stock.” And on March 23d a letter which closes the correspondence, in which it is stated: “If possible we would like to get this matter closed up at once and to arrive at the proper inspection for this car of lumber. We suggest that a hardwood inspector, or some inspector that is familiar with hardwood inspection, inspect this stock. If this is satisfactory to you, we will have this done at once. Awaiting your early reply regarding this matter,” etc. And to this letter the plaintiff never replied, claiming at the trial that such an inspection had already been agreed upon.
The parol testimony is conflicting, though the plaintiff appears to rely upon its claim that, the carload of lumber had been accepted and had never been properly inspected, rather than upon any clear, definite and distinct testimony as to the real character of the lumber.
There was a verdict and judgment in favor of the plain
The errors assigned are—
It is admitted by counsel for the plaintiff that the instruction is erroneous in telling the jury that it was the duty of the defendant to have the inspection made immediately upon the arrival of the car, but it is claimed that under the facts of this case that error is harmless. We cannot agree with this suggestion. It is noted first that the use of the word “inspection” in this connection is possibly misleading. It may have been construed by the jury either to mean that the- defendant should have examined the lumber, or that there should have been a formal inspection made by some duly authorized inspector of lumber. In either event it is erroneous and misleading. In a case like this, where it is necessary to unload a car in order to examine its contents, the payment of the freight and the unloading of the car are not construed as an acceptance. The purchasr has the right to rely upon the obligation resting upon the seller, under his contract, to ship the commodity of the character and quality specified in and required by the contract, and is entitled to a reason
In Wiburg & Hannah Co. v. U. P. Walling & Co. (Ky), 113 S. W. 834, involving a sale of lumber, the court said “We should also say that in a case like this, where lumber in carload lots was ordered and delivered, that the purchaser should not be held to have accepted it, or waived his right to reject it, merely because he took it out of the cars for the purpose of inspection, as it could not be inspected without being removed from the cars and each piece of lumber examined.” Citing a, number of cases.
In G. I. Frazier Co. v. Owensboro S. & B. Co., 162 Ky. 310, 172 S. W. 656, this is said: “There can be no doubt but what in a case like the one at bar, where the goods were shipped to the buyer from a distant point, and he had no opportunity to inspect them, he would have a right to take them into possession by virtue of the bill of lading, for the purpose of making an inspection to determine whether or not they were in accordance with the contract of sale, and if the staves did not comply with the contract to reject them, and, in this state of case, the delivery would
And in the recent case of Unadillo Silo Co. v. M. A. Hull & Son, 90 Vt. 134, 96 Atl. 535, this doctrine which is so fully in accord with reason, common sense and custom is approved.
While the instruction is not as clear as it should have been, it in substance supports «the defendant’s theory of the case, and directs a verdict in its favor, if the jury shall
The defendants were entitled to have the jury instructed that they were not deemed to have accepted the car of lumber under the circumstances recited in the instruction, but the court rightly refused to give it because it instructed the jury to find for the defendant, ignoring all of the other controverted facts in the case.
This instruction assumes that there is evidence tending
We are of opinion to reverse the case and to remand it for a new7 trial, for the errors indicated.
Reversed.