Henkel v. Welsh

Defects in merchandise — Usage—Notice to broker. It is enough if the vendor of goods is notified of defects within such time as is not unreasonable under the circumstances. Evidence is admissible that under mercantile usage the proper storage of herring on receiving it, without immediate examination, does not waive objections to its quality or variance from the order given for it. Notice, of defects in merchandise may properly be, given to the agent or broker through whom the sale has been made. An agoncy for making a sale is presumed to last till the transaction is oomplotcd.

Error to Wayne. Assumpsit by Welsh, a New York merchant, for the price of thirty half-barrels of herring sold to Henkel, a merchant at Detroit. Henkel gave evidence tending to show that the herring were stowed when received, in a cool cellar where they would, have remained good for months if in good condition when placed there, but that in about a week after they were received, some packages were examined and the fish were found to be soft and unfit for use, of which fact the local merchandise broker who had negotiated the sale and who had been for some -time in Welsh’s employment, was notified at once., Henkel afterwards notified Welsh by letter. In order to show that defendant had acted in accordance with the usual custom in the receipt of this class of goods, a witness who was first shown to have been a grocer for many years and expert in handling fish, was asked what the rule or custom of merchants was in receiving, say Portland round herring, in half barrels, as to examining them after they were received, to ascertain their condition; whether they examined fish immediately upon the receipt upon the sidewalk; what their custom was about the receipt of fish; how soon after goods of this class are received they should be examined by the purchaser; and how soon after the receipt of such goods, they gave notice to the vendor if the goods were not as represénted. These questions were excluded. The jury found for the plaintiff and defendant brought error.