Jewell Belting Co. v. Hamilton Rubber Manufacturing Co.

121 Ill. App. 13, 1905 Ill. App. LEXIS 340

• Court: Appellate Court of Illinois
• Decided: May 29, 1905
• Docket: Gen. No. 11,970
• Status: Published

Opinion

Mr. Justice Adams

delivered the opinion of the court.

FTeither party contends that there was not an acceptance by appellee of appellant’s proposition contained in its letter of February 24, 1900, and the goods in question were delivered by appellee to appellant after the letter of March 1, 1900, from appellant to appellee was written. The letters of February 24th and 27th were put in evidence, and the contract evidenced by them is clearly, as we think, that appellee would sell the 5-inch belting, which is the only belting mentioned in the letter of February 24th, to appellant, on its orders, according to the samples mentioned in appellant’s letter of February 24, 1900, the belting, if not corresponding with the samples, to be replaced by appellee without expense to appellant. Appellant introduced no. evidence of any claimed defect in the 5-inch belting, except that it was crooked, as compared with the samples, which the evidence tends to prove were straight.

The clause in the proposal of February 24, 1900, entitled “Guarantee” is: “All belting furnished under our order is to be guaranteed to be perfect in material and manufacture, and should it prove otherwise, it will be replaced.”

Frederick G. Davis, appellant’s manager, testified that he had, prior to 1900, twenty-one years experience in buying and selling rubber belting of the style of belting in dispute; that he had seen the samples furnished by appellee and had compared them with the belting shipped by appellee to appellant, and the samples, including the sample roll mentioned in appellee’s letter of February 27, were straight, and that the belting was crooked; that Mr. Bast, appellee’s manager, was present when witness examined the belting, and witness told him that the Case Company refused to put the belting out in that condition, and that Bast said to go ahead and put it out and that appellee would stand back of us. Also, that Bast examined one or more rolls of between 300 and 400 feet, and recognized that the belting was crooked, but said he did not believe that it was so crooked as to injure the running of it, and for us to go ahead and put it out. On another occasion Bast said that the belting had commenced to go wrong. The witness further testified that he examined a dozen rolls of the 5-inch belting.

Fred J. Kathbun testified that he examined seven or eight rolls of the 5-inch belting, containing 380 to 400 feet each, taken from different shipments, and that it was crooked, and when laid out on the floor it lay on a curve. Mr. Servís, appellee’s vice-president, testified that the belting was all manufactured in precisely the same way.

Appellant is a jobber in rubber belting, and in compliance with the request of appellee, by its general manager, Mr. Bast, it put the 5-inch belting on the market, selling the most of it to the I. J. Case Threshing Machine Company, of Hacine, Wisconsin. That Mr. Bast directed appellant to put the belting out and said appellee would stand back of it, is not contradicted by the evidence, and the legal effect of this is that appellee is estopped to claim an absolute acceptance by appellant of the belting. Appellee, by requesting appellant to put out the belting, in other words, to dispose of it in the market, waived its privilege of replacing objectionable belting, and left appellant free to pursue its legal remedy, precisely as if the contract contained no provision for replacing belting.

Hr. Davis, after testifying as stated, was asked: “Hr. Davis, what would such belting as you examined be worth on the market, at that time?” An objection was sustained to the question, after which the following question was asked the witness: “Hr..Davis, what wonld such belting as this 5 by 4 belting be worth in the Chicago market in 1900, in the condition in which you found it, when you examined. these different rolls?” A general objection was made to. each of the questions, when the court said: “I am sustaining the objection to these different questions on the ground that you have got to return them, according to contract, and give them an opportunity to' replace them. If you lost the sale of belting by reason of its not being up to grade, then you would have an action on that, but you must follow the contract. They might find a better market than you could. You must live up to the contract; that is what a contract is for. You cannot go your own way.” The court persisting in its ruling, the following occurred:

“Hr. Wilson: If your Honor is going to hold that these goods should be returned even under the contract, I would suggest that we simply withdraw a juror and submit it to the court.

Juror withdrawn, according to agreement.

Hr. Wilson: As I understand it, the difference between your Honor and myself was upon the question as to whether or not "these goods should be returned.

The Court: Whether or not the contract should be complied with.

Hr. Wilson: Well, in that respect.

The Court: In that regard, yes. Suppose we proceed. I am against you on that proposition.

Hr. Wilson: All right, I will take an exception.”

It having been admitted that the belting.in question was not returned, the ruling of the court necessarily excluded all evidence on the part of appellant tending to prove damages, to recover which was the object of the suit, and appellant would have saved time by resting after it had reserved an exception to the ruling.

We think the court erred in its construction of the contract. The contract provides that the belting “is to be- guaranteed to be perfect in material and manufacture, and should it prove otherwise, it will be replaced by you, without any expense to us.” This, certainly, did not require appellant to return belting which did not conform to the contract. The appellee, under such circumstances, contracted to substitute other belting, without expense to appellant, and appellant could not return the belting to Trenton, Mew Jersey, without expense. The utmost that can be said in respect to appellant’s 'duty in the premises is, that it was incumbent on it to notify the appellee that the belting was inferior to that contracted for, and would not be accepted.

Grimoldby v. Wells, L. R. 10 Com. Pleas, 391, decided in 1875, is directly in point on the general question, whether when one sells goods by sample, and the goods, when delivered and inspected, are found not equal to the sample, it is incumbent on the vendee to return the goods. It was contended that such was the vendee’s duty, in respect to which Lord Coleridge, C. J., says: “There is no want of authority to the contrary of the proposition contended for. In the case of Lucy v. Mouflet (1), both Martin, B., and Bramwell, B., expressly lay it down that it is not necessary to send back the goods in order to entitle the purchaser to reject them. It would be very hard if it were so. By the supposition the vendor has not complied with the contract, and has sent goods which as against the purchaser he had no right to send; why should he be entitled to impose upon the purchaser, who never bargained for such goods, and who has a right to reject them, the burden of sending- them back, possibly for a considerable distance, at a considerable expense ? Mo authority, as it seems to me, can be cited for such a proposition, and the reason and justice of the thing are against it. For these reasons it appears to me that the county court judge was wrong, and his judgment must be reversed.” In the same case Brett, J., says: “The defendant has a right to inspect the goods, and it seems to me that where the sale is by sample, and inspection is to be at some place after delivery, the true proposition is, that if the purchaser on such inspection finds the goods are not equal to sample, or if they are, in fact, not equal to sample, he has a right to reject them then and there, and is not bound to do more than reject them. There are several modes in which he may reject them, some of which are pointed out by Lord Chelmsford in Couston v. Chapman (1), in the passage which was cited from his judgment, and which, in my opinion, is to be read not as if cumulative, but as if alternative. He may, in fact, return them, or offer to return them; but it is sufficient, I think, and the more usual course is, to signify his rejection of them by stating that the goods are not according to contract and they are at the vendor’s risk. Ho particular form is essential; it is sufficient if he does any unequivocal act showing that he rejects them.” See, also, Underwood v. Wolf, 131 Ill. 425, 435-438, and cases there cited. The last case is cited with approval in Wheelock v. Berkeley, 138 Ill. 153, 157, and in Morris v. Wibaux, 159 Ill. 627, 643. So much with regard to the general question, when the contract is silent as to return. In the present case the_ language of the contract is, of itself, a sufficient answer to the proposition that it was appellant’s duty to return the belting. The objection to the questions above quoted, put to the witness Davis, were general, specifying no ground of objection, and the sustaining of the objections was error.

Don O. Blanchard, after testifying that he was a manufacturer of rubber belting and had been for seventeen years, was asked these questions:

Q. “Mr. Blanchard, suppose that rubber belting, say of 5-inch wide and 4 ply, when rolled out on the floor, was crooked belting, as a rubber manufacturer what would you say caused that defect?”

Q. “Supposing, Mr. Blanchard, that rubber belting that was 5 inches wide and 4 ply, when rolled out on the floor, was crooked, would or would you not say that was a defect in the belting ?”

The court sustained general objections to these questions, saying: “You cannot prove that by this witness, because he never saw the belting.” Hr. Davis had testified that the samples were straight and the belting crooked, and it was not necessary that the witness Blanchard should, himself, have seen the belting, in order to testify as to the cause of the crookedness, and whether the crookedness was a defect. The first question is, perhaps, obnoxious to criticism in assuming that crookedness in belting is a defect, but this could not be reached by general objection. We are not called upon to pass on the form of any question mentioned in this opinion. Appellant’s attorney offered to prove by the witness that the crookedness of the belting was caused in the manufacturing of it, to which offer an objection was sustained. We think the refusal to admit the evidence was error.

Appellant put in evidence the following letter:

“Chicago, Ill., Feb. 21, 1901. Hamilton Rubber Co., Trenton, ÍT. J.

Gentlemen: As a means of reducing to writing the understanding had between your Mr. Blodgett and our Mr. Davis with regard to the 5-inch 4-ply rubber belting furnished last year on our orders for the J. I. Case Threshing Machine Co., and upon which there has been claims made by the said J. I. Case T. M. Co. upon us for allowances, not as yet specified, by reason of the belts being, in their estimation, defective in sundry particulars..

With a view to our being able to settle the matter and pay to you such invoices as may be purchased from you from time to time and owing to our desire to continue our relations in a most harmonious way, it is agreed between us, that we pay you your account in full, as it stands upon our books on this date, reserving, however, the sum of $2,500, which sum shall be considered bearing directly upon the settlement of the J. I. Case Threshing Machine Co. account, it being understood, however, that we shall use our utmost endeavors to settle with the J. I. Case T. M. Co. to the very best of our ability in your interest, and when such settlement is arrived at we will make a detailed report to you of such settlement and the conditions concerning it, and at that time we will take up further the allowance that you shall make on such belting.

It is understood further that in this settlement with the J. I. Case Co. we shall endeavor to have returned all belting in their hands of your make, as we shall endeavor to have returned all other goods which we furnished them and which they may have on hand at the time of settlement.

Every feature of the transaction in all its details has been gone over between Mr. Davis and Mr. Blodgett, and we shall take pleasure in advising you of any future developments pertaining to this particular transaction.

We will endeavor to make the earliest possible settlement of this claim, with a view to closing our books at the earliest date possible on the balance above referred to.

Very truly yours,

Jewell Belting Co.,

By Frederick G. Davis.

Accepted.

¡Hamilton ¡Rubber Co.,

By.........................”

The evidence is that the most of the belting in question was shipped by appellant to the J. I. Case Threshing Machine Company, of Racine, Wisconsin.

Inasmuch as there seems to be some difference between counsel as to the effect of the agreement of February 21, we think it proper to state our views in respect to it.

It is impliedly admitted by the agreement that $2,500 of the purchase price of the belting had not been paid by appellant, and it was agreed that appellant would reserve that amount, pending which reservation it was to use its utmost endeavors to settle with the Case Company, and, if it should succeed in making a settlement with that company, it was to report to appellee, and then the parties were to take up the question of -what allowance appellee should make to appellant. There is no provision in the agreement as to what should he done in the event that appellant should not succeed in its efforts to procure a settlement; but both parties evidently acted upon the hypothesis that a settlement between appellant and the Case Company might be made, and we do not think the agreement can he understood as meaning that, if such settlement should be found impossible, appellant would be bound to abandon its claim for damages. The agreement is, in effect, that negotiations between the parties should be suspended pending- appellant’s efforts to settle with the Case Company. The evidence is that the appellant found it impossible to settle with that company that the company not only refused to settle, hut threatened to sue appellant. After it was demonstrated that no settlement could be made with the Case Company, appellant could rightfully sue for the damages which it claimed, or appellee for the unpaid balance of the purchase price of the belting. Practically, both parties have so construed the agreement—■ appellant, by suing for damages, and appellee by pleading a set-off, which is a cross action, for the unpaid balance of the price of the belting.

There is a conflict in the evidence as to whether appellee furnished to appellant any samples of the one and one-half and two-inch belting, and a conflict between counsel as to whether appellant did or not abandon its claim for damages in respect to that belting. These are questions which, on account of the conclusion we have reached, we do not deem it expedient to discuss. The fact that the court construed the contract between the parties erroneously, to appellant’s prejudice, is, of itself, reversible error. Iroquois Furnace Co. v. Wilkin Man’g Co., 181 Ill. 582, 596; Bright v. Kenefick, 69 Ill. App. 43.

The judgment will be reversed and the cause remanded.

Reversed and remanded.