Jones v. Bloomgarden

106 N.W. 891, 143 Mich. 326, 1906 Mich. LEXIS 645

• Court: Michigan Supreme Court
• Decided: March 13, 1906
• Docket: Docket No. 56
• Status: Published

Opinion

Grant, J.

(after stating the facts). 1. The errors in the charge are too patent and glaring to require much comment. It gave the jury to understand that the defendants had the same right to dispose of this perishable property under their contract for its purchase that officers would have when levying upon perishable property under writs of attachment and execution. It furthermore gave •the jury to understand that, if the defendants refused to accept the beans, it was their duty to reship the car to Baltimore. The illustration about the cattle placed the parties to this suit in the position of principal and agent instead of vendor and vendee. The charge also stated that holding one’s self out as agent is evidence of authority.

2. The brokers, Bowen & Co., had no authority to make a contract with defendants on behalf of the plaintiff to annul the contract of sale and authorize them to sell the beans for the account of the plaintiff. Bowen & Co. were simply brokers or middlemen. Defendants knew that they were not purchasing of them, but of the plaintiff. The defendants, after the inspection made by them Saturday morning, closed the contract, and Bowen & Co. so telegraphed plaintiff. The failure to ship Monday was waived. Bowen & Co.’s connection with the transaction was closed.' They were employed for the sole purpose of making a sale, and made it. They had no authority to take any other steps in the transaction. It was therefore error to admit evidence of this arrangement with Bowen & Co., of which the plaintiff knew nothing. If such an arrangement — which Bowen denies — was made, defendants evidently doubted Bowen’s authority, for they after-wards sent a telegram which is inconsistent with it.

3. The most difficult question arises upon the inspection. It is conceded that the defendants were entitled to inspect the beans upon their arrival in Detroit, and that they were entitled to a reasonable time in which to inspect. The reasonable time allowed by the law for inspection depends upon the circumstances of the case, and is usually a question of fact for the jury. 2 Mechem on Sales, .§ 1381. The vendee is required to act promptly. George D. Sisson Lumber & Shingle Co. v. Haak, 139 Mich. 383. This reasonable time must also depend more or less upon the character of the goods shipped, and the opportunity for inspection. A more prompt inspection of perishable property is required than of nonperishable property. This is based upon sound reason, but counsel cite no authorities upon the subject, and I have been unable to find any. A car load of perishable fruit or vegetables should receive more prompt attention than a car load of lumber. Where lumber was shipped in box cars the vendees were held entitled to take it to their yards, unload and examine before accepting it. Holmes v. Gregg, 66 N. H. 621.

The learned counsel for the plaintiff insist that the acts of the defendants amounted to an acceptance of the goods, and bars any defense to this action. That depends upon the character of the inspection which the defendants ought, in justice, to have made. It has been held that an inspection sufficient in law is not conclusive upon the rights of the vendee, where there is a latent defect afterwards discovered. Miller v. Moore, 83 Ga. 684 (6 L. R. A. 374); 2 Mechem on Sales, §§ 1392, 1393. If the defendants did not make the customary and necessary inspection, they cannot recover. If they did make an inspection customary and sufficient to determine the character of the entire car load, was it customary and proper to leave the car load, in hot weather, in the yards of the railroad company, for 48 hours without further icing ? One of the defendants’ witnesses testified that it was impossible to determine the quality of the beans until one got into the two ends of the car. If this be the fact and the defendants knew it, was it their duty to make that inspection at once, even if- it would take several hours ? Can they defend by postponing it two days, leaving the beans in the car ? This same witness saw these beans in the car, but on just what day is not clear. When asked what the condition of the beans was, he replied, ‘ ‘ Well, they' were the same, if not worse; on account of the ice getting out, some of them nested in the center.”

The question is an important one, and doss not seem to have received the attention and consideration in the court below that it ought. We are unable to say upon this record that a proper inspection was made. The first attempt at inspection was made in seasonable time. The instruction of the court upon this point gave the jury no rule of law to govern them. Facts other than those appearing in this record may, upon a new trial, affect the question. We can now only announce some general rules of law applicable to the case. It was the duty of the defendants to make a prompt inspection and such as is customary and sufficient to determine the character of the goods. If they made such an inspection they did all that the law requires, and if there were defects in the beans not opened, which existed at the time of shipment, the plaintiff cannot recover on the contract, but only on a count of quantum meruit. Miller v. Moore, supra. If that inspection was not such as the law requires, then notice of rescission was not given within a reasonable time, and the defendants are liable for the full amount of the contract price. If a more extensive inspection was necessary to determine the character of the goods, it was the duty of the defendants to make it, and they cannot defend upon the ground that it would take them several hours to do it. If the beans became damaged after the inspection, the plaintiff is not responsible for such damage. If, when shipped, they were such as the contract called for, and were shipped in good condition, the plaintiff is not responsible for damages resulting from any cause after they were so shipped.

Where a vendee notifies the vendor within a reasonable time of the rescission of the contract because the goods are not such as were contracted for, and asks what disposition he shall make of them, and the vendor implies, insisting that he has fully performed the contract, the vendee may dispose of the goods at the best price obtainable, and interpose, when sued, the defense of the vendor’s noucompliance with the contract. Howard v. Hoey, 23 Wend. (N. Y.) 350. There are many decisions to the contrary, but the weight of authority favors the rule above stated, and we think it is founded in sound reason. 2 Mechem on Sales, §§ 1392,1393. This case is easily distinguishable from Kupfer v. Michigan Clothing Co., 141 Mich. 325.

Judgment reversed, and new trial ordered.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.