
    The Bowman Lumber Co. v. Anderson et al., doing business as The Buckeye Churn Co.
    
      Sale and delivery of chattels — Of described grade or quality— Seiler bound by grade described — Absence of express war ranty does not obligate seller — Where goods are accepted by buyer,' when.
    
    By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty no obligatioh is imposed upon him which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract if the acceptance is with full knowledge of all the conditions affecting the character and quality of the article.
    (No. 8025
    Decided March 8, 1904.)
    
      Error, to the Circuit Court of Shelby county.
    The lumber company brought suit in the court of ■common pleas against the churn company to recover the amount due on two car loads of poplar lumber sold and delivered by the plaintiff to the defendant, "the petition being in the short form authorized by the code. The churn company answered, denying the allegations of the petition and alleging, by way of ■counterclaim, that the defendants had purchased from the plaintiff ten car loads of number one, select and common, poplar lumber, under a memorandum of .sale made in writing; four cars had been delivered under said contract and paid for at the contract price of $20.25 per thousand feet; that the two items included in plaintiff's account sued upon, represented two additional cars upon said contract, which were not of the quality and kind bought and stipulated for by said contract, but inferior thereto, and only of the value of $18.50 per thousand feet ;fhat the defendants refused to receive the said two cars upon said contract and at once notified the plaintiff that the same were not of the grade or quality purchased and were worth only said sum of $18.50, which they then agreed to pay for the same; that at the time said two cars were shipped, poplar lumber of the grade and ■quality contracted for had materially advanced in price in the market; that the defendants had requested the plaintiff to deliver lumber of the kind and quality contracted for, which it had refused to do, and at all. times refused to deliver the remaining four cars. It asked judgment by way of counterclaim for $260.69 on account of the defects in the two cars, and for the further sum of $420.50 for failure to deliver the remaining four cars. By reply plaintiff admits that four cars were delivered and paid for by tbe’ defendants; that they agreed to pay for each installment of lumber when delivered; that the two items of the account upon which it sued represented two additional cars delivered upon said original contract, but denied the other allegations of the answer. Plaintiff further replied that upon the delivery of said two cars of lumber under said contract the defendants objected to the gradé thereof and refused to .pay the contract price therefor; that thereupon the plaintiff tendered the said defendants the freight advanced by them; that the plaintiff demanded the return of said lumber and permission to remove it in order that it might substitute other lumber therefor; that the defendant refused to permit such removal, and actually used the lumber in its business.
    Upon the trial it appeared, without contradiction, that the contract was for ten cars of number one, select and common, -poplar lumber at the price of $20.25 per thousand, delivered; that four cars were delivered and paid for, the controversy arising over the fifth and sixth cars shipped; that when these cars were received by the purchasers they unloaded them; placed the lumber in the yard of their factory, and inspected it; that they notified the seller that the lumber was not of the grade contracted for, but proposed to retain the same and pay for it at $18.50 per thousand feet. This proposition the sellers rejected and insisted that the lumber should be paid for at the contract price or returned at his expense, he to furnish other lumber in its place. The parties retained this position during a considerable correspondence, and when a representative of the seller came to adjust the matter the purchasers refused to pay the contract price and refused to permit him to remove the lumber. About three months after the receipt of the lumber the purchasers used it in their business, the seller not having consented thereto except as it might be received under the contract. Evidence was also introduced tending to show that the lumber was inferior to that described in the contract. The seller, regarding the refusal of the- purchasers to pay for lumber received as terminating the contract, refused to deliver the remaining four cars. The defendant also introduced evidence to show that the market price of such lumber had advanced while the controversy was in progress. The court in substance instructed the jury that if they should find from the evidence that the purchasers had accepted the two cars as being a part of the contract, and after inspection and ascertainment of its real grade and quality, without any agreement between themselves and the spller, appropriated the lumber to their own use, as a matter of law they had accepted it and the question whether it was or was not of the kind provided for in the contract was not a question for the consideration of the jury; that it was the duty of the plaintiff to furnish lumber of the kind described in the contract, but when lumber was delivered by the seller, as in -performance of the contract, and with knowledge of its character accepted by the purchasers, they could no longer make objection upon the account of the grade, quality or price; that this would be the rule of law in the absence of any fraud or deceit practiced by the seller.
    The jury returned a verdict for the plaintiff for the full amount claimed in its petition, and this, a motion for a new trial having been overruled, was followed by judgment. On petition in error the circuit court reversed the judgment for error in the instruction.
    
      
      Messrs. Gilbert & Shipman, for plaintiff in error,
    cited and commented upon the following authorities :
    2 Schouler on Personal Property, sec. 321; Fairbank Canning Co. v. Metzger, 118 N. Y., 260; 16 Am. St. Rep., 753; Chanter v. Hopkins, 4 M. & W., 399; Carleton v. Lombard, 149 N. Y., 137; Waeber v. Talbot, 167 N. Y., 48; 82 Am. St. Rep., 712; Reed v. Randall, 29 N. Y., 358; 86 Am. Dec., 305; Coplay Iron Co. v. Pope, 108 N. Y., 232; Hoadley v. House, 32 Vt., 197; 76 Am. Dec., 167; Van Wyck v. Allen, 69 N. Y., 61; 25 Am. Rep., 136; White v. Miller, 71 N. Y., 118; 27 Am. Rep., 13; McCormick v. Sarson, 45 N. Y., 265; Beck v. Sheldon, 48 N. Y., 373; Dutchess Co. v. Harding, 49 N. Y., 321; Galord Mfg. Co. v. Allen, 53 N. Y., 515; Mason v. Smith, 130 N. Y., 474; Pierson v. Crooks, 115 N. Y., 539; 12 Am. St. Rep., 831; Bierman v. City Mills Co., 151 N. Y., 482; Rodgers & Co. v. Niles & Co., 11 Ohio St., 48; Benjamin on Sales (7 ed.), secs. 600, 701, 706.
    
      Mr. Andrew J. Hess and Mr. John F. Wilson, for defendants in error,
    cited and commented upon the following authorities:
    
      Rugg v. Moore, 110 Pa. St., 236; Underwood v. Wolf, 131 Ill., 425; 19 Am. St. Rep., 40; Benjamin on Sales, “Conditions”, and “Successive Payments,” 567, 604; West v. Bechtel, 125 Mich., 144; 84 N. W. Rep., 69; 10 Am. & Eng. Ency. Law, 88; Benjamin on Sales (Am. Notes), 961, 962; Pierson v. Crooks, 115 N. Y., 539; 12 Am. St. Rep., 831; Winchester v. Newton, 2 All., 493; Benjamin on Sales (7 ed.), 681 et seq.; Morse v. Moore, 83 Me., 473; 23 Am. St. Rep., 783; Tillyer v. Van Cleve, 7 Circ. Dec., 209; 13 C. C. R., 99; Miller v. Moore, 83 Ga., 684; 20 Am. St. Rep., 329; Gould v. Stein, 149 Mass., 570; 14 Am. St. Rep., 457; Fairbank v. Metzger, 118 N. Y., 260; 16 Am. St. Rep., 753; Dayton v. Hooglund, 39 Ohio St., 671; 2 Mechem on Sales, sec. 1336; Blackburn v. Reilley, 47 N. J. Law, 290; 54 Am. Rep., 159; Cahen v. Platt, 69 N. Y., 348; 25 Am. Rep., 203; Monarch Cycle Mfg. Co. v. Royer Wheel Co., 12 O. F. D., 277; Merser & Co. v. Naylor, 9 App. Cas., L. R., 434; Railway Co. v. Ontario Mills, 10 Ont. App., 677; Winchester v. Newton, 2 All., 492; Smith v. Lime Co., 57 Ohio St., 518; Benjamin on Sales, 906; Nixon v. Nixon, 21 Ohio St., 114; Mechem on Sales, sec. 1393 et seq.; Beresford v. McCune, 13 Re., 409; 1 C. S. C., 50; Muller v. Eno, 14 N. Y., 597; Day v. Pool, 52 N. Y., 416; Benjamin on Sales (7 ed.), 960 et seq.
    
   Shatjck, J.

Unless the purchasers were justifiable in refusing to pay the contract price for the two cars of lumber which they received and did not. pay for, the seller might lawfully regard the contract as terminated thereby and refuse, as it did refuse, to deliver the remaining four cars which the contract contemplated. We therefore concur in the view taken by the circuit court upon this point, that the only question to be determined is whether the trial judge correctly instructed the jury with respect to the obligation of the purchasers to pay for the two car loads the price stipulated in the contract. In the court of common pleas the words “select and common,” indicating the grade of the lumber, were regarded as merely words of description which imposed upon the seller no obligation which would survive the receipt, inspection and use by the purchasers of the cars which the seller had shipped in good faith as in performance of the contract. In the circuit court the words were regarded as being both a description and a warranty, the warranty imposing upon the seller an obligation which survived the acceptance and use of the lumber by the purchasers with full knowledge of all the defects therein, which, upon the trial, they sought to make available as a defense to an action for the contract price.

Undoubtedly, in sales of this character, the particular subject of the contract not being designated or identified, the seller becomes charged with an obliga-' tion to furnish an article of the description contained in the contract, and the purchaser does not become bound to accept any other. In some of the cases cited this obligation of the purchaser is called a “warranty.” That in some cases he is liable to the same extent as he would be upon a warranty is clear. That he incurs such liability in all cases of this character cannot be sustained by either the reasons involved or by the discriminating cases. It is not doubted that if the particular subject of this contract had been identified, the rights and liabilities of the parties would be determined under the rule caveat emptor. What modification, or apparent modification, of that rule does justice require in view of the fact that the subject of the contract was not present or designated? Obviously it is that the purchaser should have the same opportunity for effective inspection of the subject which would have been afforded by its actual identification at the time of the sale. The instruction was given in the present.case in view of evidence tending to show, or, more accurately, conclusively showing, that upon the arrival of the two cars at the factory of the purchasers they removed the lumber from the cars, made the inspection, which, according to their testimony 'upon the trial, showed that it was not in accordance with the description in the contract, and refused, for that reason assigned, to make payment of the contract price, proposed to take it at the lower price as lumber of an inferior grade, and the seller not assenting thereto, refused to permit him to remove it at his own expense and to substitute other lumber which should be acceptable to them and in compliance with the contract; and that after three months they used it in their business, the seller always insisting that it should be accepted under the contract or that he should be permitted to substitute other lumber. The obligation of the seller was to furnish lumber of the amount and grade described. No terms were employed appropriate to an obligation that these particular cars should be of that grade, nor does any consideration of justice to the purchasers require that such obligation should be imposed upon the seller regardless of intention. His offer was to perform his contract, and the purchasers should not be permitted to coerce him into the acceptance of a price arbitrarily fixed by themselves, or to the submission to a jury of a price which had been fixed by the agreement of the parties.

It is admitted that the instruction given is- in accordance with the doctrine declared and the point decided in Pierson et al. v. Crooks et al., 115 N. Y., 539. The case involved the rights of the parties to an ex-ecutory contract for the sale of chattels not identified and the effect of acceptance by the purchasers. The court said: 1‘ The quality is a part of the description of the thing agreed to be sold, and the vendor is bound to furnish articles corresponding'with the description. If he tenders articles of an inferior quality, the purchaser is not bound to accept them. But if he does accept them, he is, in the absence of fraud,, deemed to have assented that they correspond with the description, and is concluded from subsequently questioning it. This imposes upon the vendee the-duty of inspection before acceptance, if he desires to-save his rights in case the goods are of inferior-quality. There is in such case no warranty of quality which survives acceptance, and the vendee cannot reject the goods after acceptance or recover damages; for inferior quality. He can do nothing inconsistent with the right of rejection, or do what is only consistent with acceptance and ownership, without precluding himself.” Of the numerous cases in which the same view has been taken, Chanter v. Hopkins, 4 M. & W., 399, attracts attention because of Lord Abinger’s discriminating criticism of the unfortunate use of the word “warranty” in cases of this character. His criticism is commended by Mr. Benjamin in his work on Sales, section 600. While it is true that some of the decided cases cannot be reconciled, with the view of the subject here taken, discrimination will show that they do not constitute the “weight-of authority” even if that be taken to refer to mere numbers. Such discrimination will attend to what-is decided rather than to what is said; it will recognize thát mere reception may not be acceptance; that-the purchaser is not precluded from subsequently asserting that the article does not conform to the description by the fact that in the due course of trade he has disposed of it without opportunity to inspect, and that neither opportunity to inspect, nor actual inspection, will preclude him from subsequently complaining of defects which are of such a nature. that they would not he disclosed by any practicable-inspection.

Judgment of the circuit court reversed, and that, of the common pleas affirmed.

Spear, C. J., Davis, Price and Crew, JJ., concur..

Summers, J., not participating.  