63 N.J.L. 39 | N.J. | 1899
The opinion of the court was delivered by
This action was brought by King & Company to recover the purchase price of fifty bales of gambia sold to Rudolph G. Salomon upon the terms set out in the following memorandum:
“New York, 19th June, 1896.
“ Sold to Mr. R. G. Salomon, Newark, N. J., for account of Messrs L. C. King & Co., city.
“ One hundred (100) bales usual good merchantable quality gambia for delivery at New York, during the month of September, 1896, sellers to have option of delivery either ex-store or ex-vessel. Price, three and three-quarters (3f) cents per ib., payable in gold or its equivalent, by thirty (30) days’ acceptance from date of delivery. Sound to be taken — sea-damaged, if any, to be rejected at time of delivery. Deliverable in good order, actual weights and 5 lbs. per bale tare.
“ W. R. Russell & Co.,
“Accepted— “ Brokers.
“ R. G. Salomon.
“ W. I. Salomon, Atty.”
Under this contract fifty bales ex-store were delivered, accepted and paid for. The remaining fifty bales — those in suit — were delivered ex-vessel to the Merchants’ Express and Transportation Company, in New York, and by it carried to Newark, N. J., where, after inspection, the defendant refused to accept the goods, whereupon this action was brought. At
The same error of construction led logically to the conclusion that, for the purposes of this contract, the delivery ex-vessel to a common carrier as agent of the vendee imputed an acceptance. This, also, was error, for the reasons given and upon general principle, for if there be no proof to the contrary the mere delivery of goods to a common carrier as tiie agent of a vendee will not impute to him their acceptance under a contract of sale. The vendee’s right to reject for non-conformity to contract is so connected with his opportunity to inspect that, under ordinary conditions, they stand or fall together. With respect to common carriers, the inspec
The errors in law in the present case do not, however, lead to a rev'ersal of the judgment, for the reason that upon the merits of the defence the verdict was for the plaintiff. The cause was tried before the Circuit Court, a jury being waived. The rulings of law are contained in a supplemental finding. The original finding was limited to the question of fact raised by the defence and is thus stated by the trial court: “ The only question necessary to decide in order to ascertain the rights of the parties to this litigation, is whether the garnbia delivered to the express company, the agent of the defendant, was, as to quality, the garnbia called for by the written agreement between the parties.”
The conclusion reached after a review of the case is : “ The evidence satisfies me that the garnbia delivered to the express company in the city of New York, to be by it delivered to the defendant, was the garnbia called for by this contract, and that it was a performance of the contract upon the part of the plaintiffs.”
In propounding the question of fact to be decided the phrase '“ the garnbia called for by the written agreement ” without any doubt describes the subject of sale with regard to its quality under the contract. The use of the identical expression in the decision of the question can have no other meaning than that which makes it an answer to the question that the court put to itself as disposing of the case upon its
The judgment of the Circuit Court is affirmed.