
    Ernest De Bavier et al., Resp'ts, v. Hugo Funke, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    1. Principal and agent—-Existence op relation.
    . In action for breach of a contract of sale by failure to accept, plaintiffs claimed that they acted as agents for defendant in procuring the goods; while defendant claimed that they were principals in the sale and warranted the quality. The negotiation was by means of letters and telegrams. Held, that the question as to the nature of their relation was properly submitted to the jury.
    2. Sale—Refusal to accept.
    Where the order for goods requires them to he equal to that of a certain grade or quality, the vendee cannot capriciously refuse to accept them when tendered if in fact equal to those of the specified grade, even though they are bought subject to approval.
    3. Same—Estoppel.
    An acceptance of goods after full opportunity to inspect and examine them, estops the vendee from subsequently claiming damages.
    4. Same.
    Five days is a reasonable time to allow for inspection and examination.
    5. Same—Damages—Evidence.
    Evidence of the amount brought on a sale of the goods at auction is admissible to" show the damages sustained by a capricious or unreasonable refusal to accept.
    Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiffs, and from an order denying the motion of the defendant for a new trial.
    Lamed, Warren & Knapp (Ira D. Warren, of counsel), for app’lt;
    
      Lachman, Morgenthau & Goldsmith (Samson Lachmun, of counsel), for resp’ts.
   Lawrence, J.

The action was brought to recover damages in the sum of $987.70, and interest, sustained by reason of the refusal of the defendant to accept ten bales of silk purchased for and on his behalf by the plaintiffs. The complaint sets forth that the plaintiffs, commission merchants in New York and Milan, were. employed by the defendant, a silk manufacturer of College Point, to purchase on his account fifteen bales of raw silk, under an agreement whereby the plaintiffs were to import said silk under their own credits, and to receive payment therefor, and for their commission, in four months notes; a purchase of fifteen bales; the expenditure of large sums therefor; the acceptance by defendant of five bales, and the refusal to accept the balance ; notice by plaintiffs of their intention to sell these ten bales on a specified date; the sale and consequent loss of the amount claimed. The answer alleges a contract to purchase the fifteen bales of the plaintiffs; admits the acceptance of five bales, and settlement therefor; also the tender of five additional bales, and refusal to accept them on the ground, as claimed, of the inferiority in quality ; denies tender of the last five bales, and alleges their inferiority, likewise; and contains, further, a counterclaim for $438.12 damages alleged to have been sustained by the defendant on the five bales admitted to have been accepted and used, and five bales of a prior purchase on the ground that the silk was “guaranteed” by plaintiffs “to be of cornaredo filature, strictly classical in quality,” and that it was in reality inferior. The averments of the counterclaim were put in issue by the reply.

The facts in this case are somewhat complicated, the rights and interests of the parties depending upon various letters and telegrams, which were put in evidence on the trial; and, without a .thorough examination of these letters and telegrams it is impossible to arrive at a correct determination of the issues involved in ¡the action. From an examination of the evidence, both documentary and oral, we are of the opinion that the contract between the plaintiffs and the defendant is to be deduced from exhibits A, B, 0, D, E, F, Gr and H, and that they establish that the defendant agreed to purchase, through the plaintiffs, fifteen bales of silk, deliverable during the months of October, November and December, 1888, and fifteen more bales between December, 1888, and February, 1889. In the order for the first fifteen bales, under ■date of July 25, 1888, the defendant said : “ Of course, I expect the same cornaredo as previously received, and terms, four months from delivery here.” In fulfillment of the first order, the plaintiffs notified the defendant that they had bought, “ subject to approval, gold ticket quality, guaranteed equal to cornaredo, which is now unobtainable at any price.” In the order for the .second lot, the defendant stated that he “ expected ■ the silks to be equal to cornaredo, and not of the woolly character.” There was, therefore, no warranty that the goods should be of •cornaredo filature. They were guaranteed to be equal to cornaredo, which was unobtainable. The defendant, under this contract, ■or under these contracts, if the transactions are to be regarded as two separate transactions, accepted fifteen bales, which were delivered under the first order, and five bales, which were delivered under the second.order. His counterclaim is in respect to five bales delivered under the first, and five other bales delivered under the second, order. He had a right to demand, in the first instance, that the silk should be equal to the cornaredo filature; but it seems to us that after acceptance and payment for certain bales, when he had had a full opportunity for inspecting and examining them, he is estopped from now alleging that they were inferior to the cornaredo filature, and from claiming damages therefor. However that may be, the defendant gave evidence tending to show the inferiority of nine, not ten, bales of silk to the cornaredo filature; and the question of the counterclaim was fully submitted to the jury by the justice before whom the cause was tried, and was found adversely to the defendant.

In respect to ten other bales deliverable on the second order, which the defendant refused to accept, different questions are presented. _ It is claimed by the appellant, in the first place, that the plaintiffs are principals, and not agents, in the transaction, and that they were, therefore, guarantors that the silk was equal in quality to the cornaredo filature; and, secondly, that the goods were purchased subject to approval, and that he had the right to Tejeet any of the silk, if, in his opinion, it did not suit him, or was not available for his business, or was not equal to the cornaredo filature for any reason. If this be granted to be a correct interpretation of the contract between the parties, the defendant claims that the court below erred in denying the motion which was made by the defendant to dismiss the complaint at the close of the case. We are of the opinion that this view of the defendant’s rights cannot be maintained. He had not the right capriciously to refuse to approve the goods, if in point of fact they were equal to cornaredo filature ; and there was evidence to the effect that the goods delivered were equal to cornaredo filature. Such evidence being before the court, it had no right to take the question from the jury by a dismissal of the complaint. The question as to whether the goods were equal to those of cornaredo filature was fairly presented by the learned justice who tried the cause to the jury; and, the evidence being conflicting, their determination of the question of fact is final.

It is contended that the justice erred in the comments which he made upon the testimony of two of the expert witnesses; but, referring to the charge, we find no error in that respect. The justice said:

“ If you believe the testimony of Mr. Moll and Bourdis, then the goods furnished by the plaintiffs to the defendant were equal to cornaredo filature, and were classical in quality, and complied with the agreement made by the plaintiffs.”

The justice did not affirm that the whole agreement between the parties had been complied with, in the event of their believing those witnesses, but merely that the plaintiffs had made out that the goods complied with the agreement between the parties; and a perusal of the testimony of those witnesses substantiates the statement. The defendant had a right to a fair and reasonable opportunity to approve the ten bales tendered under the second order; and, if he was not afforded that opportunity, plaintiffs cannot recover in this action. It is strenuously insisted by his counsel that he did not have such an opportunity. This position cannot be sustained. On the 27th of February, 1889, the defendant positively declined to accept any more silk from the plaintiffs, and requested them not to send him any “ further correspondence regarding this matter, as they will find no attention.”

On the 18th of March, 1889, he abandoned this position, and stated in a letter sent to the plaintiffs that on further consideration he would receive the further shipments under the contract, if the quality of the silk was satisfactory as per- agreement, but notified them that he should hold them for damages for defective quality in the shipment of the four bales. These four bales were all part of the first lot, and had been already accepted and paid for ; and, as already stated, it was too late for the defendant to counterclaim in respect to them. As to the remaining ten bales, it appears that the defendant had refused to accept five of them. And, as to the other five, it appears that the condition papers had been sent to him as early as April 10, 1889. The sale did not take place until the 15th of April, or five days later than the papers were sent to him. On the 18th the defendant was informed by letter that he could examine the goods at the warehouse of the auctioneers on Monday, the 15th inst., the day of sale. According to the evidence of Grand, the examination would not have taken over half an hour. We do not think that it can be asserted, in the face of the correspondence and the oral testimony, that the defendant did not have an opportunity to examine the goods as fully as it was necessary to enable him to determine as to their condition and quality. The plaintiffs were not obliged to wait for an indefinite time for him to make up his mind as to whether he would accept or reject the goods ; and, having waited an appropriate time, they were entitled, after notifying him, to sell the same, to save expense and loss.

Various exceptions were taken on the trial to the rulings of the court upon the admission and rejection of evidence, also to the charge as delivered, and to the refusal of the justice to charge certain of the requests made by the defendant, some of which .should be considered. The defendant requested the court to charge that the plaintiffs were not the agents of the defendant, but were commission merchants, and the sellers of this silk, as between themselves and the defendant, and were themselves liable on the guaranty to furnish silk equal to cornaredo. This was refused, and the defendant’s counsel excepted. Standing alone, this refusal might have availed the defendant on this appeal; but, upon reference to the charge as delivered, it will be seen that the court had already instructed the jury that, if the goods were purchased from the plaintiffs, “ the plaintiffs guaranteed that they were equal to cornaredo filature.” He also charged:

“ They have done their duty, they have complied with the law, if they have furnished' to the defendant a quality of goods classical, and equal to cornaredo filature; and it is for you to say, from the evidence in the case, whether or not they did in fact furnish to the defendant this quality of goods.”

And the jury had also been previously instructed as follows :

“ The plaintiffs say that they were employed by the defendant as agents. The defendant denies that, and alleges that he purchased from the plaintiffs. So you will determine, in the first instance, whether the plaintiffs were acting as agents of the defendant, or whether they were acting as principals. These facts are to be determined from the evidence in the case. If the plaintiffs were acting as agents of the defendant, then they were bound to use a reasonable degree of care in carrying out his commands ; and if they used such degree of care, even if they failed in carrying out his command, they would not be liable for the failure. They were bound, as agents, to act in good faith towards the defendant ; and if they have so acted in good faith, and with a reasonable degree of care and skill, such skill as you would expect from men in their business, they are not liable, although there was a mistake on their part.”

The question whether the plaintiffs were acting as principals or agents was on the evidence, as we think, properly left to the jury; and, as they had been fully charged by the court as to the law applicable to either of those relations, it was not error to refuse to state over again a proposition which had already been correctly presented by the court.

The defendant submitted eleven requests to the justice to charge certain propositions. The 1st, 2d, 4th, 8th, and 10th of those requests had been fully covered by the charge. The 5th, 6th, and 7th requests were properly refused, for the reason that the defendant had, by his own acts, precluded the plaintiffs from giving him other and further opportunity to examine the goods, as has been already stated in the previous portion of this opinion. As to all the other requests which were refused, we deem it only necessary to say that the questions which they were designed to present had been already fully presented to the jury in the charge; and it was, therefore, not erroneous to refuse to repeat them.

The exception taken, at folio 54 of the case, to the admission of testimony as to the price obtained upon the sale of the silk, cannot avail the defendant, for the reason that if it should be found by the jury that the defendant had capriciously or unreasonably neglected or refused to accept the goods, regarding the plaintiffs either as principals or agents in the transaction, that testimony was proper to show precisely what damages had been sustained by the plaintiffs by that refusal.

Finally, our review of this case satisfies us that the questions which it involves were fully covered by the judge’s charge; that no error, in substance, was committed during the trial; and that, therefore, the order and judgment below should be affirmed, with costs and disbursements.

O’Brien, J., concurs; Van Brunt, P. J., concurs in result.  