
    *Andrew Mitchell & Co. vs. McBee & Irvin.
    Where the vendor sends goods, with his price marked upon them, and they are accepted by the vendee, the law will imply that they were taken on the vendor’s terms ; unless it should appear otherwise, from the course of previous dealing between the same parties, or from some custom with which both were acquainted.
    Before Gantt, J., at Greenville, Spring Term, 1841.
    A suggestion of fraud to a return made by a garnishee, in a case of attachment. The following statement of facts appears from the report of the Circuit Judge.
    McBee & Irvin, co-partners in trade, as merchants, sent an order for goods to a merchant in New York, by the name of Purdy. Certain goods were sent on by Pnrdy. Shortly after the arrival of the goods, the house of Andrew Mitchell & Co., merchants of New York, sued out an attachment against Purdy, a copy of which ivas served on the firm of McBee & Irvin. McBee & Irvin, soon after the arrival of the goods, addressed a letter to Purdy, stating that some of the goods forwarded were such as were not embraced in their order to him, and such as were contained in their order were charged at too high a rate. Purdy, on the receipt of the letter, wrote to Mr. Nicol, a correct and regular bred merchant of the village of Greenville, requesting him to call on McBee & Irvin, and effect a settlement with them, which Mr. Nicol stated could have been made but for the attachment which had been served.
    In Purdy’s letter to Nicol, he did not say that the goods ordered had not been charged too high, nor did lie deny that in the invoice of goods sent, articles were inserted which had not been ordered. On these subjects he was silent. The authority given to Nicol, by Purdy, to effect a settlement with McBee & Irvin, and to take less than what the goods were charged at, carried with it a tacit admission that the complaints of McBee & Irvin were well founded.
    Irvin, the garnishee, made his return to the attachment served on the house of which he was a member ; to this return there was a suggestion of fraud, and an issue made up.
    *Application was made, in open court, before the trial was proceeded in, to amend the return, by the insertion of two small iii'ticles which had been overlooked and omitted to be inserted by mistake. I thought the application most reasonable, and did not hesitate to allow the amendment to be made, although strenuously opposed by the counsel for the plaintiffs in attachment.
    A bill of particulars had been made out by the house of McBee & Irvin, which was submitted to the inspection of merchants, and rvho deemed the charges therein such as were correct and proper. The general scope of the evidence went to show the truth of the fact that many of the articles had been too highly charged for.
    I saw nothing in the evidence that would justify the conclusion that the return of the garnishee was fraudulent, or otherwise than what the principles of justice and law recognized. My charge to the jury corresponded with this view of the case, and the jury made a deduction, which appeared to me to be rational and proper, and well supported by the testi-money.
    
      The grounds of appeal consist, 1st. In the Court having granted leave to amend the return of the garnishees. The law would be converted into an engine of oppression, if such an application, founded on principles of honesty and correctness, could not be received and acted on.
    On the first ground for a new trial, I did not think that McBee & Irvin were bound by force of the attachment, to submit to the gross imposition attempted to be practiced upon them, either by Purdy or certain plaintiffs in attachment. On the second ground, I have only to observe that the objection grows out of testimony which was introduced by the counsel for the plaintiffs in attachment, (the evidence of Nicol,) and was clearly proper for the consideration of the jury. The attachment which had been levied neither destroyed the competency or credibility of Purdy as a witness.
    Ilis Honor will take notice that we will, at the next Court of Appeals, move to reverse his order, granting leave to amend, without paying costs, after issue joined ; and for a new trial, on the following grounds :
    *1. Because his Honor charged the jury that although the defendants did receive and appropriate the goods to their use, with a full knowledge of the prices charged for them, they were not bound to pay those prices, but might take them at the valuation of the witnesses.
    2. Because his Honor permitted the declarations of II. Purdy, the absent debtor, made after the execution of the writ of attachment, to go to the jury; and because he told the jury, the affidavit of the respectable firm of McBee & Irvin, was sufficient to satisfy them the return was not false, and to find their return false, would be equal to finding them guilty of perjury.
    3. Because the verdict is contrary to law and evidence.
    
      Choice, for motion,
    cited, 2 Starkie Ev. 878, note; Id. 877; 4 Esp. Rep. 95, letter C.; 1 Stark. 257.
    A contract cannot be rescinded in part. Chitty on Cont. 275-70; Saunders on Pleading, 544; 2 Bail. 4, Robison vs. Jones.
    
    
      B. F. Perry, contra,
    cited 1 Rice’s Dig. 80. A garnishee may amend his return.
   Curia per

Butler, J.

In addition to the facts stated in the report, it was admitted in the argument of this case, that defendants were opening the goods when the attachment was served on them. Of course, they then had it in their power to refuse to take such goods as were not ordered, and others charged at higher prices than they were willing to give. Instead of doing this, and giving notice to Purdy of their objection and refusal to accept the good, they received and appropriated them. Some days afterwards, but when the rights of the parties were fixed under the contract, they wrote to Purdy, intimating their dissatisfaction. By their conduct they made themselves parties to a contest which they might have left with the plaintiffs and Purdy, and have rendered themselves accountable for the value of the goods, under the terms of the contract between themselves and Purdy. They have voluntarily assumed a position which they could well have avoided, for they could have restricted their liability to pay only for the goods which they had ordered, and which they *were willing to receive at the prices specified, leaving the others in the hands of the sheriff, to be disposed of under the order and judgment of the Court. Having accepted all the goods, the defendants have given to the plaintiffs the power to insist upon and enforce Purdy’s rights, whatever they were at the time the goods were received; and it was not in Purdy’s power to defeat these rights, by any arrangement, which he might chose to enter into with a view to prejudice the plaintiffs. By the voluntary act of the defendants, the plaintiffs are placed in a situation in which they can insist on their absent debtor’s strict legal rights. The question is, what are these rights, by the legal operation of the contract under which the goods were received ? The vendor sent them on with their prices specified in the invoice that accompanied them. One party says, in effect, I send you these goods, at the prices mentioned ; and if you take them, you know what you have to pay. The other party, the vendee, says, no, although I did not order these particular goods, I will take them, but I will not pay your prices, I will have the goods subject to another valuation, against your consent, and will pay you in Greenville, as much as they are estimated to be worth The one insists on his own prices, perhaps according to valuation in New York, and the other on a quantum valebat, to be determined at Greenville, the place of consignment In an action for goods sold and delivered, where no price was agreed on by the contracting parties, or where the vendor has not put a specific price on them when he sends them to the vendee, the vendor must recover, and quantum valebat to be ascertained by evidence on the trial.

But when the price has been agreed on, or where the vendor sends goods with his prices marked upon them, and they arc accepted by the vendee, the law will imply that they were taken on the vendor’s terms, unless it should appear from the course of previous dealing between the same parties, or from some custom with which both were acquainted, that the defendants had a right to reduce the prices to a quantum valebat, at the place w'here they were received. For in such case the contract might be supposed to have been made in reference to the custom or course of dealing. In the absence of these, the general principles of the law must prevail. It seems to me, that no one should be obliged to part with his property against *his consent, except on his own terms ; and if the defendants in this case can take these goods and put their own prices on them, or by the estimate of their own witnesses, can reduce the prices, the vendor might be compelled to part with his property at prices lower than he was willing to take, and below their true valuation. It is enough to say that the vendor could not compel the vendees to take the goods against their consent, upon his own terms, and it is reasonable that he shopld not be deprived of them against his consent, upon the terms of the defendants. The case stands thus between the parties : The defendants sent to Purdy for certain goods of a particular description, he sends others not ordered or contracted for, and at higher prices than were implied in the contract, and the defendants receive and appropriate them. Now, what should be law on the subject ? I have examined the cases referred to by Mr. Starkie, in his 2d vol. on Ev. p. 640, and I think he has extracted and laid down the principle correctly. “ Where there has been a special contract as to the nature, quality and price of goods, and those which have been delivered do not correspond with the contract, it is clear the vendee has a right to repudiate goods so delivered in toto ; for having contracted for one thing the vendor cannot substitute a contract for some thing else ; and therefore, if he return the goods, or give notice to the vendor to take them back, it is clear the vendor cannot recover,” &c. If, however, the vendee in such cases choose to keep the goods, he cannot reduce the special contract to a mere quantum valebut, &c., he must pay the price or return the goods. The question of amendment was within the discretion of the Judge below.

In this view of the law, we think a new trial should be granted in this case, which is accordingly ordered.

O’Neall and Evans, JJ., concurred.  