Kellogg v. Barnard

14 F. Cas. 246, 6 Blatchf. 279, 1868 U.S. App. LEXIS 1372

• Court: U.S. Circuit Court for the District of Connecticut
• Decided: December 21, 1868
• Status: Published

Opinion

SHIPMAN, District Judge.

(1.) This was not a sale by sample. Though samples were forwarded to the plaintiffs, and they replied by an offer of “fifty cents all round,” provided the bulk equalled the samples, yet the brokers informed them that one point in the sale was, that they must be in Boston on Monday and examine the wool. The telegram and the letter of the Oth of August, from the brokers, taken together, show that it was not their intention to sell without an examination was first made by the buyer. These communications were both of them sent after the offer had been made by Kellogg & Co. to purchase by the samples, and apprized the plaintiffs that the sale must be upon the usual examination of the article. If the plaintiffs intended to rely on the samples, and purchase on that basis, their journey to Boston, and their examination of the bales at the brokers’ store, were wholly superfluous. More than this, the examination of the bales at the brokers’ store, after notice that such examination was necessary before the contract could be completed, was inconsistent with the idea of a sale by sample, with a warranty that the bulk of the wool should equal the specimens sent to Hartford. The exposure of the few bales at the brokers’ store was, in no sense, a presentation of samples warranted to accurately represent the bulk. The object of the exhibition of these bales was doubtless correctly stated by Mr. Kellogg, one of the plaintiffs, who said, in his testimony, that it was “to inspire confidence.” It was an appeal to the judgment and discretion of the purchaser. There was no express warranty that the bales not examined should accurately correspond to those exhibited at the brokers’ store. The law cannot, under the circumstances, imply such warranty.

(2.) This was a sale where, as to the general character and quality of the goods, the maxim, caveat emptor, applies. “Where goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim, caveat emptor, applies, even though the defect which exists in them is latent and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer. The buyer, in such a case, has the opportunity of exercising his judgment upon the matter; and, if the result of the inspection be unsatisfactory, or. if he distrusts his own judgment, he may, if he chooses, require a warranty. In such a case, it is not an implied term of the contract of sale, that the goods are of any particular quality or are merchantable.” Jones v. Just, L. R. 3 Q. B. 197, 202.

(3.) This was a sale under a custom of the trade which supplies a warranty against false packing. The validity of a custom somewhat similar to this was recognized by the supreme court of Massachusetts in Casco Manuf’g Co. v. Dixon, 3 Cush. 407. The court has, in the present case, found that the custom existed, qualified by the condition that the seller must be notified and furnished with the marks and numbers of the bales claimed to be falsely packed. The main practice of the custom, to wit, that there is, in the sale of wool packed in bales as this was, a warranty of the seller against false packing, was proved by the concurrent testimony of many of the witnesses on both sides. The point of difference among them was touching the time within which the buyer must give the seller notice of the fraud and make his claim. On this point there was great diversity of opinion among the defendant’s witnesses. But the conclusion which the court arrived at, on the whole evidence, and which it stated in the finding of facts, is, that notice of the fraud, and of the marks and numbers on the bales, must be given to the seller in a reasonable time. This, indeed, is the only practicable rule in connection with, or as a part of, the custom. What a reasonable time is, is a question of fact, to be determined as each case arises.

(4.) The court has found that notice of the fraud was, in this case, given to the seller in a reasonable time; and that, as to the marks and numbers, the numbers on twenty-four bales were furnished the seller within a reasonable time, and the furnishing of the marks was not insisted on, but was waived. As to eleven other bales, it was found that the defendant waived all claim to have the marks and numbers furnished to him. He caused those bales to be examined by his own agents. He must at that time have well known that the wool in question was part of the lot he received on consignment from Tyler. This is doubtless the reason why he did not insist on the marks, when the numbers and weights of the twenty-four bales, severally, were presented to him. All of the seventy-three bales were marked S. T.. and this was the only . mark, except the numbers, which it was proved was on tlie bales. It was by this mark that they were billed to the plaintiffs.

[NOTE. The defendants took the case to the supreme court upon writ of error. Mr. Justice Davis here delivered the opinion of the court, saying: “The sale was intended to be upon the usual examination of the article, and the proceeding by Kellogg shows that he so understood it. * * * The parties negotiated on the basis of caveat emptor. and contracted accordingly. This they had the right to do and by the terms of the contract the law placed on the buyer the risk of the purchase, and relieved the seller from liability for latent defects.” Upon the question of the operation of the usage of trade the learned justice held that the rule that “usage may be admitted to explain what is doubtful; but never to contradict what is plain” applies. Says he: “It is apparent that the usage in question was inconsistent with the contract which the parties chose to make for themselves, and contrary to the terse rule of law governing the sales of personal property. It introduced a new element into the contract, and added to it a warranty, which the law did not raise, nor the parties intend it to contain.” The judgment of the circuit court was reversed, and the cause remanded, with directions to award venire de novo. 10 Wall. (77 U. S.) 383.]

(5.) It follows that the plaintiffs have a right to recover $3,000. being the loss sustained by them on thirty-five bales, the marks and numbers on which were furnished to the seller, or were waived by him. They are entitled also to recover interest at the rate of six per cent, per annum,' on that amount, from January 19th, 1SG5, to the present time.

(0.) As to the loss sustained on the remaining thirty-eight bales, amounting to $4,100. the plaintiffs are not entitled to recover. It was their duty to have furnished the marks and numbers on these bales, or been excused therefrom by the defendant. This part of the custom must be complied with in order to entitle the purchaser to make a valid claim. It may, and often must, be important for the seller to have these marks and numbers, for the purpose of enabling him to identify the article as one sold by him, and furnishing him with the means of resorting to the person who sold or consigned the goods to him. It is easy for the purchaser to furnish the marks and numbers, as they are on the bales. The plaintiffs having failed to comply with this feature of the custom upon which alone they can rely, so far as these thirty-eight bales are concerned, and the defendant never having waived his right to insist on such compliance, the plaintiffs must, to that extent, fail to recover.