
    James F. Mason et al., Resp’ts, v. George Y. Smith et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 20, 1892.)
    
    J.. Sale—Duty of vendee upon delivery.
    Upon an executory contract for the sale and delivery of goods it is the duty of the vendee on the arrival of the goods or within a reasonable time thereafter to examine them and determine whether or not they are of the kind and quality ordered, and if found not to comply as to quality and kind to promptly rescind the contract and either return or offer to return the goods to the vendor.
    2. Same—Rescission.
    Writing a letter of complaint in October as to goods shipped in August, and stating that vendee is not satisfied with them and that they would prefer not to accept them even at a ten per cent allowance, etc., does not amount to a rescission of the contract, and where in response to such a letter the vendors write that vendee might return such goods as were not. satisfactory and they would replace them,and a part are returned on October 26, another quantity Oclober 28th and the balance on November 3, with complaint as to their quality .the vendors would be justified in understanding and believing that the goods returned were to be replaced in accordance with their letter.
    (Bradley, J., dissents.)
    Appeal from, a judgment of the general term of the supreme court, third department, affirming a judgment entered upon a verdict directed by the court.
    
      Arthur R. Robertson, for app’lts ; John-M. Carroll, for resp’ts.
    
      
       Affirming 28 St. Rep., 519.
    
   Haight, J.

This action was brought to recover the contract, price for gloves sold. The plaintiffs are manufacturers and importers of gloves at Johnstown, N. Y. The defendants are retail sellers of gloves and other dry goods in Kansas City, Mo.

On the eighth day of April, 1887, the defendants ordered from the plaintiffs a quantity of gloves of a specified quality and price, thereafter to be imported and delivered. On the 31st day of August, 1887, the gloves were shipped, and received by the defendants on September 17th thereafter. The defendants carefully examined every pair of the gloves so received, and finding some of them defective, on the 6th day of October, 1887, returned two- and one-half dozen to the plaintiffs, with the following letter:

“ Gentlemen :
“We return to you to-day, IT. S. Ex., kid gloves, as per enclosed bill. You will find on examination that they are not perfect, and for this we will ask you to kindly credit our account with amount
“We have, at this late date, examined every pair of this glove and are not at all satisfied with them. Would much rather return same to you than to place them on sale, as they do not open up as we think they should. We should prefer not to accept these even at a 10 per cent allowance.
“ Should have advised you at an earlier date but could not make proper examination sooner. Awaiting your reply, we remain,
“ Yours resp.,
“G. Y. Smith & Co.,
“T. C. S.”

The plaintiffs credited the defendants with the price of the-gloves returned, and on October 22d wrote the defendants acknowledging the receipt of the goods and that the gloves were not of the quality that they should be, and conclude as follows:

“You are at liberty to examine our goods, pick out-the seconds, and all the goods (leaving the matter to your judgment and idea. of what is fair) which are not satisfactory you may return, and we will be glad to send you in exchange A Ho. 1 goods. We wish to do what is right in this matter and trust that in the above proposition you will find proof of the fact.
“ Hoping this will meet your approval and awaiting returns, we are,
“ Yours very truly,
“ Mason, Campbell & Co.”

After the receipt of this letter, the defendants on the 26th of October, 1887, returned 37 7-12 dozen gloves, with the following letter:

Gentlemen :
“ Your favor of the 22d inst received and contents carefully noted. After making another thorough examination of the kid gloves in question, we have decided to return them. This we do to-day by H. S. Ex. We enclose bill and ask you to please credit us with the amount.
“Yours truly,
“ G. Y. Smith & Co.,
“T.C. S.”

On October 28, 1887, the defendants returned another quantity of gloves with the following:

'“ Gentlemen :
“We return to you to-day, U. S. Ex., Ho. 864 2 7-12 dozen M m’s Gloves. These goods are worse than the worst of seconds, and are such that we cannot use. In ordering we gave our order for first quality goods, not seconds, as sent.
“ With these return the Ladies’ Black Piques, and will ask you to kindly credit both lots. We do this very reluctantly, but are compelled to do so, in order to protect both our customers and ourselves.
“Yours resp.,
“ G. Y. Smith & Co.,
“T. C. S.”

On Hovember 3, 1887, the defendants returned the balance of -the gloves remaining unsold, with the following:

“ Gentlemen :
“By to-day’s Exp., we return to you the Ho. 946 kid gloves. We have kept these until now, thinking that we could possibly dispose of them, but we find that they are so entirely unsatisfactory that we think it best to return them now.
“We think that you will plainly see that we are justified in doing this. We hope that you will have no hesitancy in crediting them. Please do so, and greatly oblige,
“ Yours truly,
“G. Y. Smith & Co.,
“T. C. S.”

On the return of these goods the plaintiffs under date of Hovember 10, 1887, forwarded to the defendants other goods of like numbers and quantity of A No. 1 quality in accordance with the proposition embraced in their letter of October 22, 1887, with the following letter:

“ Gentlemen :
“We are in receipt of your favors of October 25th, October 27 th and November 3d, with goods referred to in each respectively.
“We have examined every pair of these goods, and this day, according to agreement, we return to you other goods perfect m every particular, as follows: * * *
“Yours truly, etc.,
“Mason, Campbell & Co.
“D. M.”

The defendants refused to receive these goods and caused them to be returned to the plaintiffs without opening the box contain-, ing them. The plaintiffs refused to receive them on their return and brought this action to recover the purchase price.

The contract for the sale and delivery of the gloves was executory. It became the duty of the defendants on the arrival of the-goods or within a reasonable time thereafter to examine them and. determine whether or not they were of the kind and quality-ordered, and if they were found not to "comply as to quality and kind, to promptly rescind the contract and either return or offer to return the goods to the plaintiffs. Reed v. Randall, 29 N. Y., 358; Gaylord Manufacturing Co. v. Allen, 53 id., 515; The Coplay Iron Company (Limited) v. Pope, 108 id., 232; 13 St. Rep., 480.

As we have seen, the defendants had examined every pair of the-gloves before October 6th. They expressly so state in their letter of' that date. There could consequently be no question of fact for the jury as to whether they had been given a reasonable opportunity to examine, for on that day they had examined and then returned to the plaintiffs such goods as they saw ñt, and they were accepted and the amount thereof credited to the defendants. If the defendants had not desired to keep the other goods they should have-then rescinded the contract and either returned or offered to return them, and in failing to do this they must be deemed to have-elected to retain them under the contract. Beck v. Sheldon, 48 N. Y., 365.

It is true that the defendants in their letter of that date complained as to these goods, and state that they are not satisfied with them; that they would rather return them than to place them on-sale, as the goods do not open up as the defendants think they should, and that they would prefer not to accept them even at a ten per cent allowance. But this does not amount to a rescission of the contract. The most that can be claimed is that it is an invitation for a proposal modifying the terms of the contract. Such, a proposal was incorporated in the plaintiffs’ letter of October 22d-It was, in brief, that the defendants might return such goods as were not satisfactory and they would replace them with A No. 1 goods, and on the receipt of this by the defendants the goods were returned without a word or suggestion that they were not returned. in accordance with the offer made. Under these circumstances we think the plaintiffs were fully justified in understanding and believing that the goods returned were to be replaced by new goods in accordance with their letter; that such a conclusion would be warranted from a fair interpretation of the correspondence referred to. It is apparent-that this construction should prevail, for, as we have already shown, the time in which the defendants had the right to rescind the contract and return the goods under the original contract had passed. They could legitimately do so only under the offer of October 22d.

Stress is laid by the appellants upon their request to “ credit us with the amount ” in their letter of October 26th, but it does not appear to us that this request has any significance or that it gave the plaintiffs notice or led them to understand that the goods were not returned in accordance with their proposal of the 22d. It is the usual practice among dealers of the character of these parties to charge for the goods when shipped, and if returned to credit back, and in case new goods are shipped to again charge for such goods. Such is the way in which their books are ordinarily kept. If, the goods returned were accepted by the seller he would of course credit them upon the account of the purchaser, even though he was to send new goods in their place.

The judgment should be affirmed, with costs.

All concur, except Beadley, J., dissenting, and Landon, J.,, not sitting.

Beadley, J., dissents on the ground that whether or not there was any agreement between the parties which permitted the plaintiffs to send to the defendants and required the latter to accept gloves in place of those returned to the plaintiffs after their letter of October 22, 1887, to the defendants, was a question of fact, which should have been submitted to the jury. And therefore the defendants’ exceptions to the refusal to submit the question to them and to the direction of the verdict were well taken.  