VANN, J.
Both parties agree that the defendant is not restricted by the grounds for rejecting the silk as stated in the cancellation notice of January 4th, 1908, because the plaintiff failed to treat such notice as a rescission and tendered performance after that date. They further agree that the defendant, in proving its right to reject, was restricted only by the grounds for rejection set forth in its letter of January 7th, 1908, returning the invoice and certificates. Those grounds were that the documents attached to the invoice had been mutilated and that the silk was not imported by plaintiff but bought by it on the market expressly for the defendant.
The documents in question are known as "conditioning and sizing certificates," which are issued by licensed persons in Milan and Florence, the one to establish the weight of the silk and the other the thickness of the thread. They are accepted in the silk trade for these purposes. The certificates furnished showed both weight and thickness and in great detail the special process, through drying and other preliminary preparation, by which each was arrived at. This is the sole object of such certificates and the name of the person to whom they are issued is incidental merely and immaterial. The contract between the parties required the silk to be conditioned as to weight, but not as to size, and the certificates rejected by the defendant were conditioned as to both. The name of the person to whom the certificates were issued did not concern the defendant and the plaintiff had the right to cut out the name in order to keep it secret if it so desired. The certificates showed on their face that the part removed was simply the name of the one for whom the work of conditioning was done, leaving the remainder untouched and complete in every respect. We think that the first ground upon which the defendant planted itself did not warrant its action in attempting to cancel the contract.
The silk was sold "to arrive," which means that it was to be imported and the words "Italian" and "White Bagdad" carry the same implication. Such silk is not produced in this country and if used here must be imported. There is nothing in the contract, however, to indicate by whom the importation was to be made and any imported silk which met the terms of the contract in other respects was a sufficient compliance therewith. It matters not that the plaintiff at first intended to deliver silk imported by itself and that the defendant expected it would, for when its own silk failed to arrive in time it had the right to purchase and deliver other imported silk of the kind called for by the contract. It was no part of the contract or of the description of the silk that it should or should not be imported by the plaintiff or by any particular person. The substance of the agreement on the part of the plaintiff was that imported silk of a certain quality should be delivered at a certain time and the defendant had no right to reject silk which satisfied these requirements.
The defendant claims the silk was not only to be imported but that it was to be imported between the date of the contract and the date of delivery. Assuming this to be so, the date of the conditioned certificates, "Milano, 23 November, 1907," indicates that the silk arrived after the date of the contract and before the attempt to deliver. This was presumptive evidence of the date of importation, which was within the limitations of the contract even when construed according to the defendant's theory.
The defendant further claims, although it did not take this position until the eighth of January, 1908, when the rights of the parties had become fixed, that under its previous contracts with the plaintiff the latter had delivered only silk purchased by it from a particular firm in France and it attempted to show this fact by offering certain letters which were excluded by the court as immaterial. As the letters are not referred to in the contract, they form no part of it and hence the previous dealings between the parties were of no importance. If the plaintiff did what it agreed to do the defendant cannot lawfully complain if there was a departure from its custom in procuring part of the silk required from a new source. It had the right to get the silk wherever it could and was under no obligation to buy it of any particular concern, even if in past transactions with the defendant this had been its custom. The contract as written measures the rights and obligations of both parties and as the silk offered was the silk sold, the defendant had no right to rescind upon any grounds which it relied on in its letter of January 7th, 1908, refusing to accept any silk for the reasons therein stated. When that letter was written and received there was still time for the plaintiff to ship the first bale. While there is some evidence that the shipment had already been made, even if there were none the plaintiff was not obliged to attempt any delivery after receipt of that letter from the defendant stating that it had instructed its mills "to refuse any bale from the railroad company." A refusal to accept made when there was still time to deliver, relieved the plaintiff from making any further effort to deliver. We hold that the reasons relied upon and stated by the defendant did not warrant rescission and as by its own action it is limited to those reasons it follows that, according to the record now before us, the contract was in force when this suit was commenced.
Shortly after the contract between the parties was made the plaintiff ordered fifteen bales of silk from a firm in Lyons, France, but as they failed to arrive in time for the first delivery it bought two bales of an importing firm in New York in order to meet the requirement to deliver "one bale during the first week of January, 1908, and one bale weekly thereafter." These two bales were all that the plaintiff had in readiness to deliver during that week. By a witness who qualified as an expert, the defendant attempted to show that these bales did not contain silk "Italian Extra Classical 10/12 Reeled from White Bagdad cocoons" but that they contained silk "Italian Extra Classical 10/12 Bagdad." This was objected to as immaterial and the objection was sustained. Many questions upon the subject were asked commencing with this: "From what cocoons is `silk Bagdad' produced?" This was objected to by the counsel for the plaintiff as immaterial and he added: "These were not rejected for quality. They are trying to introduce quality. There is no question of quality. They were not rejected on the question of quality." The objection was sustained and an exception was taken. To all the questions immediately following relating to quality the objection interposed was simply "immaterial," as before, and no suggestion was made by the defendant's counsel that he had any purpose in offering the evidence except to show that as the quality was inferior there was the right to reject on that ground. Among other questions asked was the following: "Is there any distinction in the silk trade between `silk Bagdad' and `silk reeled from white Bagdad cocoons?'" This also was objected to as immaterial and the objection was sustained. The defendant's counsel thereupon remarked: "I think we ought to have (the evidence) that there is a distinction between them. He can testify that there is a difference in the trade in the classification as `silk Bagdad' and `silk reeled from white Bagdad cocoons.' I think the witness should be allowed to say that there is a difference." The court: "How does it apply to this case?" Defendant's counsel: "It applies in my conception of the case and in my presentation of the case." The court: "You can take the benefit of an exception to my ruling." Defendant's counsel: "There is nothing to show that those terms have any import unless this witness testifies that there is a difference between the two. I take an exception."
The defendant now claims that as the two bales were sold with the others on account of the defendant for $4.20 per pound, or $1.85 less than the contract price, the difference formed part of the damages assessed by the jury. It further claims that the damages are an independent factor in the cause of action and, hence, even if it had no right to refuse delivery on the ground of quality because it did not take that position in the first place, still it had the right to the evidence offered in order to show that the two bales were worth less than the others, so that it might reduce the damages accordingly.
There would be force in this position if the evidence had been offered for that purpose, but it is apparent from the record that it was offered as matter of defense rather than in reduction of damages. If the plaintiff wished to introduce the evidence in order to reduce damages it should have said so under the circumstances, so that the court could have understood its position. No suggestion of that kind was made even when the court asked how such evidence applied to this case, and it is now too late for the defendant to take a position which it did not take and apparently did not think of on the trial. Its effort was to defeat the contract and justify its attempt to rescind it. The main struggle was not over the amount of damages flowing from the inclusion of the two bales, but over the right to recover at all. The defendant tried to get rid of a bargain which turned out to be a losing one and fought hard to defend its right to reject the goods altogether. The minds of the court and the counsel for the plaintiff were obviously on that subject and not on the subject of damages when the evidence in question was offered, and it was incumbent upon the defendant to state the object of the evidence, when expressly asked, if it was other than to defeat the contract. While the evidence may have been competent for one purpose, it was evidently offered for another and the ruling made on that theory does not involve reversible error.
The judgment should be affirmed, with costs.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment affirmed.
Comments