Rondinella v. Southern Railway Co.

33 App. D.C. 65

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 3, 1909
• Docket: No. 1867
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The declaration contains four counts. In the first count, plaintiff sues for $225 for a certain photographic printing machine known as the “Star photo-printing machine,” which sum he alleges the defendant agreed to pay or return the machine within. thirty days, which he alleges was not done. In the second count, plaintiff sues for $205 for the materials sent to defendant by order of plaintiff from the Cooper-Hewitt Company; and in count three for $12 for one extra pair of bearing frames for said machine, which sale he claims was absolute, qnd without the option of returning by defendant. In the fourth count, he sues in common count for goods sold to defendant by plaintiff. It is unnecessary to consider the fourth count, as the correspondence clearly establishes an express contract.

Counsel for plaintiff has, in his declaration, treated the sale as one based upon two separate contracts, as represented in the first and second counts of the declaration, respectively. It is contended that the portion of the structure embracing the cause of action in the first count was purchased on thirty days’ approval ; and, as defendant failed to return it within that period, its acceptance became complete and the sale executed. As to the portion of the machine — the lamps and the motor — sued for in the second count, the purchase, it is insisted, was outright, without conditions, and became an executed sale on the delivery of the lamps and motor to defendant. With these contentions, we do not agree. To ascertain the nature of the contract} it is necessary to consider the whole transaction as a unit. It cannot be conceived that defendant intended to enter into a contract for the purchase of a complete machine which, if it proved unsatisfactory, it should have the right of rescinding the contract and returning a portion of the machine, and be compelled to retain the balance, which, of necessity, must be utterly worthless to it. Of course, this circumstance cannot govern unless it is supported by the correspondence from which the contract is to be gathered; but it may be considered in connection with the correspondence in arriving at the intent of the parties as therein disclosed.

The plaintiff and the agent of the defendant never met. The transaction, in its entirety, was conducted through correspondence, all of which was placed in evidence by the plaintiff. It appears from the correspondence that defendant desired to purchase an electric blue printing machine. Its agent wrote to plaintiff for a catalogue of such a machine. In response, plaintiff sent defendant a circular and price list, quoting the No. 42 machine complete, including motor and lamps, at $425, which he proposed to sell on thirty days’ approval, with right to return if unsatisfactory. Defendant, through its agent, by the letter of May 1st, accordingly ordered one of these No. 42 machines to be sent “as quickly as possible, sale to be made subject to approval,” with the further statement that, “if the same proves satisfactory, I will send you voucher' to cover cost.”

Some correspondence then followed as to the electrical conditions at Knoxville, Tennessee, where defendant proposed to install and use the machine. When it was found that the No. 42 machine would not meet these conditions without some changes as to the lamps and motor, plaintiff suggested a change that would remedy the difficulty. In stating in his letter of May 9th the changes that would be necessary and the additional cost of $5 that the change would incur, he included the observation that the value of the machine itself, exclusive of the lamps and motor, was $225, and that it was the only part that was regular stock and returnable. Nowhere in his circulars or his letters up to this date, had there been any intimation of the fact that the lamps and motor were not regular stock. That the negotiations were being conducted for a complete machine, and that the agent of defendant so understood it, is clearly deducible, we think, from his response of May 12th, in which he states, “I have your letter of the 9th relative to making changes in the outfit ordered for this office.” He then suggests that he thinks the machine, with the changes proposed in plaintiff’s letter of May 9th, will be about what defendant wants. He had clearly in mind the original order with these slight modifications. What was the understanding of plaintiff? In his answer of May 22d, notifying defendant of the shipment of the machine, he nowhere refers to the letter of May 9th, relating to the change, but says: “This morning I shipped the last case containing the Star photo-printing machine to complete the No. 42 special outfit, in accordance with your order of May 1st and 12th.” He here positively states that he bases his authority to ship the No. 42 machine (the machine ordered by defendant on May 1st) on the order of May 1st and May 12th, when the only part of the letter of May 12th, which relates to an order at all, refers to “the outfit ordered for this office,” or the order of May 1st. Hence, it will be observed that both parties treated the sale as one based upon the order of May 1st and its acceptance, and considered the letters of May 9th and May 12th as relating only to the slight modifications made necessary in the machine to adapt it to meet the electrical conditions at Knoxville. The bill rendered by plaintiff sustains this view. It was rendered for the original machine ordered, with the modifications. If plaintiff understood the contract as now contended for by his counsel, the bill would have embraced the separate items, — the price of the lamps and motor due on shipment, and the price of the other portion of the machine due on thirty days’ approval.

Treating the sale of the machine in its entirety and as a single transaction, we have here a sale of an article manufactured by the vendor to meet a condition known to him at the time, upon the express condition that the vendee purchased it subject to approval upon thirty days’ trial. It is contended by plaintiff that defendant is' liable for the purchase price of the machine for the reason that he failed to return it within thirty days. The record discloses a contract under which defendant reserved the right to subject the machine to a thirty-day test, and, if it proved unsatisfactory, it should be returned. The contract called for not only approval or disapproval of the machine within thirty days, but also that it should work to the satisfaction of defendant.

It will be observed from an inspection of the correspondence that all the parts of the machine were not in the possession of defendant, in condition to assemble together for operation, until July 10, 1906. The period of thirty days within which defendant should approve or return the machine cannot be held to have commenced to run until plaintiff had delivered to defendant all the parts of the machine essential to put it in shape for operation. There could be no test until all the parts were present in condition to be assembled. The letter of July 10th, and the subsequent correspondence, discloses that, after repeated tests by defendant, the machine failed to work satisfactorily, and defendant, on August 1st, so notified plaintiff, and offered to return it. Plaintiff replied, ending his letter as follows: “But, if I were you, having waited so long, I should put it in operation before reaching such a decision.” The agreement for the return of the machine within thirty days was waived by plaintiff in the above letter, and the contract was left as if no specified time for return had been stipulated. The language there employed then gave the defendant a reasonable time thereafter within which to test the machine and approve or reject it. After repeated and futile attempts to make the machine work, defendant, on November 10th, boxed up the entire outfit and shipped it to plaintiff, prepaying the freight.

We are not unmindful that the question of what constitutes reasonable time for the return of an article sold on approval is usually one for the jury; but, where the facts are all disclosed by correspondence, as in this case; where there is no oral testimony from which different conclusions or inferences might be drawn; where reasonable men could only arrive at one conclusion, namely, that defendant, up to the date of the return of the machine, at the suggestion of the plaintiff, was making every effort to get the machine to perform its work; and where the court would have to so instruct the jury and grant a new trial if the verdict was otherwise than in response to such instructions, it is the duty of the court to peremptorily direct a verdict, as was done here.

We have, therefore, a conditional sale upon an express agreement that the vendee should have thirty days within which to test and approve or disapprove the machine. Within the thirty day limitation, or within a reasonable time after its waiver, the controlling condition of this contract was that the machine must be approved by defendant and work to its satisfaction. The language used in defendant’s letter of May 1st, ordering the machine, reserved to itself the sole right to pass upon its fitness to perform the work for which plaintiff had recommended it. Defendant did not subsequently waive this right. There is no law to prevent persons from making contracts wherein the purchaser stipulates that the thing purchased shall work to his satisfaction. Courts should not hesitate to enforce such conditions. The vendee, relying on the representations of the vendor, may reserve to himself, and not to a third person, the right to say whether these representations have been fulfilled. Mr. Justice Brown, in the case of Campbell Printing Press Co. v. Thorp, 1 , 36 Fed. 414, said: “When, in common language, we speak of making a thing satisfactory, we mean it shall be satisfactory to the person to whom we furnish it. It would be nonsense to say that it should be satisfactory to the vendor. It would be indefinite to say that it should be satisfactory to a third person, without designating the person. It can only be intended that it shall be satisfactory to the person who is himself interested in its satisfactory operation, and that is the vendee.”

Plaintiff here assumed the obligation of furnishing a machine that would be satisfactory to defendant. The sole question of determining the fitness of the thing to perform its work was left to the judgment of the defendant. All that was required of defendant was that the machine be given a trial, which was done. We are not concerned with the wisdom or the folly of the plaintiff in making such a contract. The extent of the test to which the machine was to be subjected in order to meet the degree of perfection which the defendant thought ought to be attained, and the action of the defendant in rejecting the machine and returning it to plaintiff, were matters left by the express terms of the contract to defendant. There was nothing to be left to the judgment of a third party, hence, nothing for the jury to determine. As to the first and second counts, there can be no recovery by the plaintiff.

As to the third count, it was the duty of the plaintiff to furnish a machine complete, f. o. b. Philadelphia. When the machine reached defendant at Knoxville, one of the bearings was broken; and, to supply the pair, of which the broken one was part, a new pair was sent. This forms the cause of action upon which this count is based. There is no proof that the bearing was broken in transit. There is likewise no proof that the bearing was in perfect condition when delivered to the railroad company at Philadelphia. It was incumbent upon the plaintiff to so deliver all parts of the machine, packed in such manner as to insure safe transit to destination, barring unforeseen accidents. In the absence of proof that the bearing was in perfect condition when turned over to the carrier for shipment, it cannot be presumed that it was in such perfect condition, that it was properly packed, and that it was broken in transit. In fact, plaintiff himself furnishes the only evidence appearing in the record on this point where he testifies, “that he did not personally see the machine shipped or loaded; he trusted that to the clerk; that he does not know what condition the shipment was in when loaded at Philadelphia; that he did not know anything about it after it”was sent to the station.” Clearly, plaintiff cannot recover on the third count.

On the face of the record, there was no error in the court taking the case from the jury and instructing a verdict for the defendant. The judgment is affirmed with costs, and it is so ordered. Affirmed.