Bascom v. Danville Stove & Manufacturing Co.

Contract — Acceptance or refusal of goods purchased — Notice of nonacceptance — Effect of alterations — Warranty—Damages—Set-off—Charge of the court. In an action to recover the price of patterns, sold without an express warranty, where the defendant alleges that he suffered damages by reason of their unfitness, and the court, after instructing the jury that the patterns should be reasonably fit and suitable for the purpose lor which they were designed, adds, “if they were not, and the defendant by reason thereof has sustained damage to an amount equal to, or in excess of, the contract price, then you must find for the defendant,” it is not error to further charge that if the jury should find that the defendant retained and used the patterns, and the damages were less than the contract price, “ then if the patterns have any value for any purpose, notwithstanding their unfitness for the use for which they were intended, the plaintiff might be entitled to recover such value.” In an action to recover the purchase price of patterns the evidence tended to show that for a considerable period defendant made changes in the patterns, and gave no notice of a refusal to accept them. Subsequently defendant wrote as follows: “We fear we cannot use them at all; we must either be paid for the extra cost, or we will return the patterns. Please advise us what to do in the matter, and oblige.” Held, that the letter could not be regarded as an absolute refusal to accept the patterns. . In an action to recover the contract price of goods it is not improper to charge that if the jury should find that the plaintiff did not fully and entirely fulfill his contract, and that notwithstanding such failure the defendant received and accepted the goods for an unreasonable length of time before giving notice of such failure, and without offering to return them in as good condition as they were when received, then the plaintiff might recover the contract price, less the damage sustained by the failure. Where a purchaser of an article makes alterations in it, such conduct is evidence of an assertion of ownership. Practice, O. P. — Point—Answer of court. Where the conclusion of a point does not necessarily flow from the premise contained in the first part of the point, it is not error for the court to refuse to affirm it. Corporations — Officers—Power to bind corporation. If a corporation holds out its officers as agents authorized to make a contract of a particular kind, it will be bound by such contract when made by the officers. Evidence — Offer of compromise. Where a part of a conversation has been given in evidence without objection, and no motion made to strike it out, the remainder of the conversation, containing distinct admissions of material facts, is admissible, although it also discloses an offer to compromise.

Appeal, No. 552, Jan. T., 1896, by-defendant, from judgment of C. P. Montour Co., on verdict for plaintiff. Assumpsit for goods sold and delivered. At the trial it appeared that the suit was to recover the price of certain wood and iron patterns alleged to have been manufactured for and delivered to the defendant company upon its order. The defendant claimed, that the patterns arrived in a broken condition, were unskilfully made, were not in accordance with the specifications and could not be used. J. Foster, a witness for defendant, after having testified at length, was asked this question by Mr. Hinckley, of counsel for plaintiff: “ Do you not know that Bascom’s errand there — and the drift of the conversation — was his being paid for these patterns? A. As I understood it, he came for the purpose of having pointed out to Mm defects in his patterns. He may have wanted his pay. Q. Did he not come here to Danville for the purpose of getting Ms pay for these patterns ? A. As I understood it, tbe object of Bascom’s visit at that time was to see what defects there were in his patterns — for us to point out defects in the patterns. That is what I had notified him to come here for — to talk the matter over. Q. What was the windup of jrnur interview? A. Well, the windup of our interview was that I made Mm a proposition or offer to pay him five hundred dollars and give him the patterns. Q. You offered that that day? A. Yes, sir. Q. What did he say ? A. He said he would not settle it that way. Q. Did you at any time renew that proposition? A. I did. Q. When ? A. Subsequently, I think by letter, I renewed the proposition.” By Mr. Scarlet of counsel for defendant: I object to this. My objection is this, that anything in the way of a proposition of settlement that is not accepted by the parties, cannot be evidence in the case. By the Court: There is no pretense that the defendant is bound by it; but it is part of a conversation brought out or inqmred of by the defendant. We overrule the objection, admit the evidence, note an exception for the defendant. [14] By Mr. Hinckley: The proper motion now would be to strike out, but we have no objection to the record showing the objection made at the time the question was asked, and to having it ruled-in that way. “Q. That proposition was afterwards renewed, you say? A. Yes, sir. Q. That proposition was renewed by the letter of May 15th. A. Yes, sir. I renewed it on my own responsibility.” The court charged m part as follows: [We fail to discover anything in 'the testimony to support the defendant’s claim of a special or express warranty of these patterns by the plaintiff; but the plaintiff by Ms testimony proves that the work he did or was to do and the patterns were to be first-class; and, in the absence of special or express warranty, the law implies that the patterns manufactured should be reasonably fit and suitable for the purposes for which they were designed. If they were not, and if the defendant by reason thereof has sustained damage to an amount equal to or greater than the contract price, then you must find for the defendant. But if you should find the damage sustained to be less than the contract price or nothing, then, if the patterns have any value for any purpose, notwithstanding their unfitness for the use for which they were intended, the plaintiff might be entitled to recover such value.] [1] There has been a great deal of testimony in this case, and it has been very tedious and troublesome to investigate the different claims set up by one party and by the other in reference to these various and numerous patterns. The business of scanning and scrutinizing all this testimony and of ascertaining from it where the truth lies is peculiarly within your province. It is your duty to recall to your minds all the testimony in the case, both documentary and oral, and to give it such weight as you believe it entitled to. If you can reconcile the testimony of the witnesses and the written communications that took place between the parties so as to find them all consistent with the truth, and not to find that anybody intended to misrepresent or to swear falsely or make a mistake, it is your duty to do so; but if the testimony be so conflicting that one party or the other must evidently be mistaken, then it is your duty to give credit where you think credit is due. . . . [You will recollect that at least two of the defendant’s witnesses testified that these patterns were not in good condition when received. If they were not in good condition when received from the carrier company, whose fault or loss was that ? There is no evidence (that we recollect) that the plaintiff failed to pack them properly or that they were not properly packed. There is testimony that they were fastened to a followboard, and no denial that that was a proper way to pack and ship. If through the carelessness or mismanagement of the transportation company, the common carrier, the patterns were separated or broken or otherwise injured, it would not be the fault of the plaintiff nor of the defendant but that of the common carrier.] [2] [If you should find that the patterns were not made in full compliance with terms of the contract, but that they were received and kept, used and retained, for an unreasonable length of time, without giving the plaintiff knowledge of it — we believe there is no dispute as to the time the patterns were all received, about the middle of October, and that they were held until sometime in January following, a period of about three months, before notice — then, if you should find they were held for an unreasonable length of time, without notice to the plaintiff, although they were not fit for the purposes for which they were intended, the plaintiff would be entitled to recover, less the damage, if any, for failure to comply with the contract. Just at this point we should say to you that damages cannot be set off unless there is some satisfactory proof of them, something more than a general allegation, some data given you by which you can make an estimation or calculation of their amount.] [3] There was some testimony about two weeks’ work, and in a statement by Bascom, we think, something about a matter that could be remedied for a dollar and a half. Such items, where the proof is specific and certain, might be set off. If the defendant has shown any items of damage such that you can arrive at the total amount of damage, to such amount the defendant is entitled by way of set-off. To recapitulate, gentlemen of the jury: If you find from the evidence that the plaintiff has fully and entirely complied with the contract on his part, made and delivered the patterns according to the contract and specifications, then he would be entitled to recover the contract price with interest from the time it was due and payable — in other words, the full amount of his claim. [If you should find from the evidence that the plaintiff did not fully and entirely fulfil the contract on his part, but should also find that the defendant, notwithstanding such failure, received and accepted the patterns and retained and used them for an unreasonable length of time before giving notice to the plaintiff of such failure and without offering to return them in as good condition as they were in when received by the defendant, then the plaintiff may recover the contract price, less the damage, if any, which the defendant company has sustained by the failure of the plaintiff to make and provide the .patterns in accordance with the contract and specifications. You will understand that in either of these two cases or alternatives the plaintiff would recover the full amount of his claim with interest, but in the second, less the damage proved by the defendant.] [4] Thirdly, if you should find from the evidence that the patterns were so inferior in quality and manufacture, and so far from being in conformity with the contract and specifications relating to the same, as to be entirely worthless and useless to the defendant company, and that the defendant so notified the plaintiff and offered within a reasonable time to return the same or to hold them subject to his order, then your verdict should be in favor of the defendant. Defendant’s points and answers thereto among others were as follows: 3. If there is a total or partial failure of the performance of the contract in the kind or quality of the workmanship so as to render the patterns unfit for the uses intended, and unprofitable to the defendant company, and the jury so find from all the evidence, there can be no recovery by the plaintiff in this ease. Answer: That point is refused. [5] 4. If the contract is not performed according to the specifications, in that material parts have been omitted, or that they have been changed, so as to affect the value of the patterns and render the manufacture of the stove unprofitable and useless and worthless to the defendant, it is a non-compliance with the contract and the plaintiff cannot recover. Answer: That point is refused. [6] 6. The letter of January 8,1891, is in no way binding upon the defendant company, it being shown that such letter was not signed by the company or by any one having authority to bind the said company.- Answer: That point is refused. -We will instruct you more particularly in reference to that matter farther on. [7] 7. If the plaintiff by his correspondence leading up to the contract made any representation as to the kind and quality of the goods, to wit: That the stove in question was to be a first class stove, and the testimony of H. C. Bascom and Galbraith to the the same effect, such statement enters into the basis of the contract, and if there is a nonperformance by the plaintiff, either in the character of the design and the execution of the work or an omission and departure from the specifications in material matters, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: Considering this point as a whole it is not correct. [9] 9. In the discharge of his duty as president, Henry Vincent could not accept the work of the plaintiff without a fair test and. trial, or place upon his company a worthless machine, and if the jury find from all the evidence that such work has never been accepted by the company as a just and reasonable performance of the contract intended, there can be no recovery by the plaintiff, and the judgment should be for the defendant. Answer : That point is affirmed. But in reference to it we should say to you that the defendant company being a corporation, could act or contract only by its officers or agents ; and when such company holds certain persons out to the public as authorized to act on its behalf, then such company or corporation, like an individual, will be bound by all the acts and contracts of such person which are done or made within the apparent scope of their agency or authority in reference to the business relating to the corporation. If you believe from the evidence in this case that the defendant corporation knowingly held out Vincent, the president of the company, and Schocli, the bookkeeper, or either or both of them, to the' plaintiff, as agent or agents authorized to act and to make a contract of any kind, or contracts in what was done by them in relation to the making and furnishing of the patterns in question in this case, and that they did so act, then the defendant company will be bound by the terms of such contract or contracts as to whatever they did with reference to the business of the company. If these patterns were accepted under such authority by Vincent, the acceptance would be binding upon the company, and the defendant would be liable for any default made in testing or for any failure to test their value. Or a corporation, like the company defendant, may ratify unauthorized acts. Although you may believe from the evidence that the plaintiff performed the work and furnished the patterns in question for the defendant, at the request of one or more officers, members, agents or emplees of the corporation defendant, not previously authorized to act or contract in reference thereto; still if you further believe from the evidence that the plaintiff performed that work, and the patterns were furnished to the company defendant with the knowledge and consent of the officers and agents of the corporation having charge and control of its property and affairs, and that the corporation received, accepted, used and held the patterns for an unreasonable length of time before notifying the plaintiff of its dissatisfaction, accompanied with an unconditional offer to return the same; then as a matter of law the company defendant may be held to have ratified the acts of such unauthorized persons, and it may be bound thereby. [10] Plaintiff’s points and answers thereto among others were as follows: 2. That if the defendant company received the patterns in question, and after such receipt began to alter or change the same, such act would be an assertion of ownership. Answer : This point is affirmed: Provided such change or alteration was made without authority or consent of the plaintiff. [11] 3. If the jury find that the patterns were delivered to the defendant by October 15, 1890, and that the defendant did not offer to return them (because of defects) before January 28, 1891, and that this offer was conditioned on the plaintiff paying to the defendant its cost incurred in altering the patterns, said offer would not be a defense to plaintiff’s claim. Answer: That point is affirmed. [12] 4. If the defendant’s offer to return the patterns was conditioned upon the plaintiff’s paying the costs incurred by it in altering the patterns, and the plaintiff declined such conditional offer, and the patterns remained in the possession of the defendant for an unreasonable length of time, this would be evidence of the defendant’s intention to retain the patterns, and the defendant would be liable for the price. Answer: This point is affirmed with the condition or exception that the defendant would be liable for the contract price, less the amount of damage, if any, sustained by the defendant by reason of the patterns not being in conformity to the contract, as under an implied warranty, as we have before instructed you. [13] Verdict and judgment for plaintiff for $1,482.49. Defendant appealed. Errors assigned were (1-7, 9-13) above instructions, quoting them; (14) rulings on evidence, quoting the bill of exceptions.