NELSON SONS v. WILKINS PARKS

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 27303.

Attorney(S)

Loving Loving, for appellants. The appellant takes the position that the appellees could not accept some of these goods and reject some. By the acceptance they made, they had no right to return any of the goods and are liable for the entire shipment. In support of this proposition we refer this Honorable Court to Strauss et al. v. National Parlor Furniture Co., 24 So. 703. In Ruberstein v. Grossman-Winfield Millinery Co. 109 Miss. 819, 69 So. 688, there was a controversy as to the goods purchased or the quantity of goods purchased, and in which the appellant retained a portion of the goods and denied liability for a portion in which this court held that the appellant was liable for the entire lot. A suggestion of error was filed in this case and was overruled in 110 Miss. 213, 70 So. 210. In Kansas Hat Cap Mfg. Co. v. J.D. Blakeney Son, 108 So. 139, the appellee's defense to the action was that appellant shipped more goods than ordered and in the meantime, by some means, he sold four hats out of the lot which proved to be unsatisfactory and returned to him and he refunded the money for the hats and offered to return all of the caps and all the hats but four and testified that he did not have these four hats on hand. This case was reversed and judgment entered in this court for plaintiff for the amount sued for. Dorroh Strong, for appellees. The appellees take just exactly the opposite position from the appellant, and that is, that the order involved in this suit was one that comes in the class of divisible contracts and the appellees had the right to do just as they did in this case, accept that portion of the goods that met the conditions of the contract and rejected the other goods. 23 R.C.L. 164; Cohen v. Pemberton, 53 Conn. 221, 55 Am. Rep. 101. The facts in this case are just exactly and identically the facts in the instant case. The case of Rubenstein v. Grossman-Winfield Millinery Co., 109 Miss. 819, 69 So. 688, 110 Miss. 213, was a suit based on open account for the purchase of a job lot of hats, where the seller's offer was to sell the entire lot and the buyer agreed to accept the entire lot. It is easy to see this was not a severable contract. See Hutchens v. Smith-Harrison Co., 64 So. 789. Appellants cite the case of Kansas Hat Cap Co. v. J.D. Blakeney Son, 108 So. 139. We do not think the facts in this case at all on a parity with the instant case and we cannot see where any phase of the case could be urged as any authority in this case for the reason there was only the question of inferior quality and the buyer only offered to return a portion of the goods and never made his offer good, by performing or attempting to perform. Then another phase is, we think the offer to return only four hats made this case one whereby the amount offered to be returned was not a separate and divisible quantity of the hats purchased. We think the appellees were clearly within their rights when they acted promptly in examining and returning the hats that were not in accordance with the specifications of those purchased. See the very extensive note in 2 A.L.R. 643, on the question of contract for sale of goods as entire or divisible. This note follows the case of Stearnes Salt Lumber Company v. Nennis Lumber Co., 188 Mich. 700, 154 N.W. 91, 2 A.L.R. 638. Loving Loving, in reply for appellants. On the question of the contract in this case being a severable contract, the appellee cites Cohn v. Pemberton, 53 Conn. 221, 55 American Reports 101, and we are unable to see where the appellee gets much consolation from this case. The last paragraph on page 103 of the American Reports reads as follows: "If then we should concede that the order for each dozen or fraction of a dozen was an entire contract, and that the hats or caps sent were materially different in size from those ordered the plaintiff, himself was in default as to contract, and could not recover anything, except for the fact that partial performance had been accepted and full performance waived by the act of defendant," and also the following paragraph on page 104 of said report: "Our reasoning has a bearing also on the question whether the contract was entire or divisible, which as we have already indicated, we do not intend to decide," consequently from this case we gather that the court refused to hold that this was a severable contract. To hold that these orders for merchandise are severable contracts, would be, it seems to the appellant, in conflict with the laws, and holdings generally and would virtually force one in making contracts for more than one item or for different articles to have a separate contract drawn for each item or each dozen or hundred, that one could not go ahead and take one order covering various lot numbers of the same articles, unless perchance there should be incorporated in this order a clause expressly provided that the contract is an entirety and not severable.

Judges

PACK, J.

See more information ...

Smart Summary

Please sign up to generate summary.

S.P. NELSON SONS v. WILKINS PARKS. Corpus Juris-Cyc References: Sales, 35Cyc, p. 261, n. 76.

SALES. Purchaser of hats by sample had no right to retain part of shipment and reject balance for defective quality.

Purchaser of hats from samples had no right, on receiving shipment, to retain a part thereof and reject the balance of the shipment, on theory that there was a breach of contract relative to quality, since, on discovery of alleged breach entitling purchaser to rescission, he was required to reject all in order to effect rescission, and by acceptance of a part made himself liable for entire lot.

PACK, J.

Appellants, S.P. Nelson Sons, instituted suit against appellees, Wilkins Parks, in a justice of the peace court, for one hundred and twenty-two dollars, based upon a shipment of hats alleged to have been purchased by appellees from appellants.

On appeal to the circuit court, there was a directed verdict in favor of appellants for the sum of fifteen dollars only, from which judgment they prosecute this appeal.

It appears that appellees operate a store in Noxubee county, Mississippi. M.A. Parks, the buyer, while on a trip to St. Louis, placed an order for the hats with the traveling salesman of appellants. The sale was made from samples; the hats to be thereafter shipped from Cincinnati. The customary order blank was made up and sent to Cincinnati to be filled, and it was upon this order that the hats were shipped. The order was not signed by either of the parties. Upon the arrival of the goods the appellees opened them up, took out one dozen of one variety, and one-sixth of a dozen of another variety, and then shipped all the remainder to the appellants, offering to pay for the hats retained, and declining to accept, or to pay for, the other hats. Appellants declined to accept the hats returned; hence this suit.

Appellees defended upon the ground that the appellants' representative agreed to place a different lining in the hats, and, failing to do so, the hats did not measure up to the quality of hats they were supposed to get.

At the conclusion of the testimony, the appellants' motion for a directed verdict was overruled.

The written order did not contain the stipulations insisted on by the appellees.

We think the narrow question for decision is: Did appellees have the right to retain a part and reject a part of the shipment of hats? In Kanson Hat Cap Mfg. Co. v. Blakeney, 142 Miss. 851, 108 So. 139, Justice McGOWEN, speaking for the court, said that one of the defenses relied on was "that the goods were not of the grade and quality which had been purchased by him [the purchaser], and that he was entitled to a rescission of the contract." In that case the purchaser accepted four hats, and attempted to or offered to, return the others. This court held, in that case, there was no rescission, and that the purchaser was liable for the entire lot.

We do not think the law permitted the appellees, after the hats had been delivered to them, to select a portion thereof, retain them, and reject the others.

Upon discovery of the alleged breach of contract of sale, assuming, but not deciding, there was such a breach as would entitle the purchaser to a rescission, he was required to reject all in order to effect a rescission. He could not accept a part and reject a part without making himself liable for the entire lot. Ormond v. Henderson, 77 Miss. 34, 24 So. 170; Rubenstein v. Millinery Co., 109 Miss. 829, 69 So. 688.

We hold that the appellants were entitled to a directed verdict for the amount sued for, and it follows that the judgment of the court below will be reversed, and final judgment rendered here for the appellants.

Reversed and judgment here for appellants.

Reversed.

S.P. NELSON SONS v. WILKINS PARKS. Corpus Juris-Cyc References: Sales, 35Cyc, p. 261, n. 76.

Comments