
    James L. Rowland, Appellant, v. S. Mills Ely and Edward F. Leighton, Respondents.
    Third Department,
    June 25, 1907.
    (Sale waiver of delivery — samples not material condition of purchase . —meaning of trade term for jury.
    (Even though a contract to sell and deliver goods is entire, buyers sued for the purchase price who made no objection on the ground that all the goods were not delivered, but resisted payment solely because the seller failed to furnish samples, cannotsbe heard-to say that their refusal to'take the goods was based on the failure to make complete deliveries.
    "Correspondence constituting contract of sale examined and held, that the furnishing of samples by the seller was not a material condition of the purchase. ■
    When in- an action to recover the value of goods sold there is a diversity of evidence as to the meaning of a trade term governing the grade of the goods, the meaning of that term and whether the goods furnished were of that quality are questions for the jury. ■
    Cochb-amb.'J., dissented, in part,-with-memorandum.
    Appeal by the plaintiff,'James L. Rowland, from an order of -the Supreme Court,- made at'the-Broome Trial Term, and entered : in. the office of the clerk of the county of Broome on the 5tli day .of January, 1907, setting aside the verdict of a jury in favor of.(the plaintiff-and granting a. new trial of tile action. .
    The plaintiff is a commission merchant living in Baltimore. "The defendants are wholesale grocers located at Binghamton, ¡N. Y. "Upon September il, 1903,-the defendants wrote to the plaintiff'a 'letter to the effect that they wanted some more tomatoes, both .-gallons and three-pound packages.' In that letter they said: “ We want-full cans of ripe, red-fruit. Kindly serid us samples with’ price and oblige.” On September fourteenth the plaintiff replied in part: “ We can offer you some standard tomatoes at 75 cents; we can give you some strictly top, full pack, nice ripe tomatoes at 77 1-2 cents. We expect to be able to supply yon with the gallons at $2.10, this is the lowest that any good gallons can be bought for, most of the packers are getting $2.15 to $2.20. There is a good demand for gallons and not many being packed, but we have one lot that are strictly top quality which we can ship yon with the three pounds at $2.10 and include the three pounds of strictly top quality of goods at 77 1-2 cents. Would say we have sold the most of this party’s goods three pounds at 80 cents and they are something strictly choice in quality.” To that letter upon the fifteenth of September the defendants replied: “Tours of the 14th received. We note what you say about ‘ strictly top, full packed, ripe tomatoes, etc.’ Well, that is what we want. If yon cannot buy for 75 cents pay 77 1-2 cents. Have an attractive label. We have just unloaded a car here that cost that and they are fine, too. Let us have them as soon as you can.” Upon September seventeenth the plaintiff replied in part: “We herewith enclose contracts for the three pounds and gallon tomatoes, we will arrange to have these shipped together, as one car load, the three pounds are ready to go forward at any time as soon as the gallons are received, and we will try and have the gallons here in a few days, and you vtdll find them both of strictly top quality.” In that letter were two papers in formas follows: (1) “Baltimore, Sept. 17th, 1903. .Bought of H. W. Roberts, Clara, Md. For account of S. Mills Ely Company, Binghamton, N. Y., 300 cases half dozen each standard gallon tomatoes at $2.10 per dozen. Terms: net cash f. o. b. Baltimore. Ship: J. L. Rowland & Co., brokers.” (2) “ Baltimore, Sept. 17th, 1903. Bought of D. J. Elliott, White Haven, Md. For account- of S. Mills Ely Company, Binghamton, 27. Y., 500 cases. 3$ full standard tomatoes at 77-^ cents. Terms : net cash delivered' f. o. b. Baltimore. Ship: J. L. Rowland & Co., brokers.” Upon the eighteenth of September the defendants replied to this letter as. follows: “ Please send us sample of the tomatoes that you enclosed contract for. We want to see them before we settle the matter. Yon don’t need to send us a gallon tin, a 3jj tin I guess will do just as-well, But ns there are two different packers, if goods are all. right as you seem to think they are — ‘top quality, strictly,’.why, that is enough. We had a fellow offer to furnish us first-class top quality for 75c for 3fl, hut that don’t matter, if yours - are as you said they are, enough said. Let us see the. samples.”
    ■ There were subsequent communications between the parties in which the plaintiff claims.that tl'ie goods were strictly top quality. The defendants made objections as to the terms “ net cash,.Baltimore,” and claimed, the usual credit, and objected to a sight draft for the tomatoes. Upon September twenty-ninth the 500 cases of the three-pound tomatoes were forwarded by freight from Baltimore. Upon the thirtieth, the defendants having received notice of that fact,, wrote to the plaintiff that he had no right to ship the tomatoes and .draw a sight draft, and said: “ We wrote you we would not accept tomatoes without seeing samples first.” To that upon October first the plaintiff replied- in part: “We overlooked the fact that we. promised to send you the samples of the Elliott tomatoes as soon as they arrived, we drew samples and examined them and found them strictly top goods, full pack, nice red ripe tomatoes. -We are, however, sending you two cans this p. m. by express, charges prepaid, and think you will find them as represented by us.” After that there was still -further correspondence in reference to the quality of .the tomatoes,. An order was given by the plaintiff upon the railroad company to allow -the defendants to inspect ■ the car. The defendants did in part inspect the car and rejected the- tomatoes. For the value of these tomatoes at seventy-seven and one-half cents .per case this, action is brought. Upon the trial the plaintiff secured a verdict. Mr. Justice Forbes presided at the trial. Thereafter" Mr. Justice Forbes- died and a motion for a new trial was made" before Mr. Justice' Sewell who granted the same. dSTo opinion was written upon the- granting, of the order for a new trial, and from the order the plaintiff has appealed to this court,
    
      Mangan & Mangan, for the appellant.
    
      T. B. Merchant and L. M. Merchant, for the respondents,
   Smith, P. J.:

The correspondence between the parties in this action is so volu-t minous that it is impossible-tq set it forth in-an opinion. Whati. ever contract was made was probably entire and a failure to deliver part would be a failure to perform the contract if it had not _been waived by the defendants. In their correspondence, however, in reference to the matter, defendants made no objection on the ground that the gallons were not in fact delivered, but their objections went to other matters entirely so that they cannot now be heard to say that the reason they did not take the tomatoes was that only a part delivery had been made' of the entire contract. The defendants further claim that there was no agreement to buy except through sample and that as no order had been made and no contract consummated after the sending-of any samples that there was no agreement upon which the defendants can be held liable. After the letter, however, of September fourteenth, which stated what the plaintiff had for sale, upon September fifteenth the. defendants apparently gave their full order without asking for a sample. Upon that order we think that the plaintiff was authorized' to make a purchase provided the goods were strictly top quality as stated in his letter of September fourteenth. It appears afterwards that this carload was sent upon September twenty-ninth by freight. Upon October .first the plaintiff also sent samples of the carload by express. Mr. Leighton, one of the defendants, ,swore that he had entire charge of the transaction with the plaintiff and dictated all the letters. He also swore' that he received samples, although he thought they came after the car was there. He did not remember that he examined the samples and that he had nothing whatever to do with the samples. As the samples were sent by express only two days after the goods were shipped by freight, if the defendants had in good faith desired to insist upon their right first to examine the samples they might have done so. Their failure, however, to examine the samples, as is apparent from the testimony of Mr. Leighton, one of the defendants, indicates that, that was not insisted upon as a material condition of the purchase.

If we assume then by the letter of September fifteenth authority to purchase for the defendants, the authority was-to purchase tomatoes which were strictly top in quality. In the sales memoranda sent with the letter of the seventeenth the three-pound cases were palled full standard while the gallon cases were called standard, In the letter, however, accompanying'' that they were spoken of as strictly top quality. Referring back, however, to the letter of the plaintiff' of September fourteenth he makes a, distinction . between ■ the'standard tomatoes and strictly top, full pack nice ripe tomatoes. One is quoted at seventy-five epnts and the other at seventy-seven and one-half cents. There is a diversity of evidence as to the meaning of the term strictly top tomatoes in the trade, and if as we construe the contract the plaintiff Was bound to furnish .strictly top tomatoes it should have be¿n left to the jury to say whether the tomatoes which were sent were strictly top fom.atoe& But the learned trial judge, after lie- had charged the jury that they were required to furnish strictly top tomatoes^ upon the suggestion of plaintiff’s counsel, varied his charge arid charged that the contract calls for full standard tomatoes and that they .were bound to take ■the evidence of the plaintiff as to what full. standard tomatoes meant. To-that charge.an exception was duly taken. That exception was,.Vve think, well taken. At no time do we find any agreément on the part of the defendants to take any toma!oes except strictly top tomatoes. What this term meant in the; trade and' whether the tomatoes furnished were of that quality were the' two - questions to submit to the jury and-for a failure of the trial judge to submit those questions to.-the jury the. Trial Term properlyx directed a new trial. • ' . , ,

The order should be affirmed, with costs. -

All concurred, Cochrane, J., in memorandum; Sewell, J., not sitting. . .

Cochrane,. J. (concurring):

I concur in the result. I do not agree, however, that the letter ,of September fifteenth constituted a “full order” without .samples.' This letter should be construed in connection with the rest of the correspondence. Defendants in their previous letter of September eleventh had'asked'/for samples., It was not necessary that in each letter they should-repeat that requirement. In the very next-letter of September eighteenth the requirement for samples was again repeated.. The letter of September fifteenth plearly is not a “full order,” because it says nothing whatever about the gallops and nothing about the number of the three-pound cases. It was only by reading it in connection with the previous letter of September eleventh that plaintiff was able to make the purchase of gallons and three-pound cases. But if we assume that the letter of September fifteenth authorized the plaintiff to purchase- without sending samples, such authority only extended to the purchase of 300 three-pound cases, whereas- plaintiff in fact purchased 500 such cases. If up to that time nothing had been said about samples defendants clearly had a right to insist on samples before assenting to the purchase of 500 cases. And this they immediately did in unmistakable terms. There can be no claim or pretense that thereafter the defendants authorized or ratified the purchase. In all this cor-respondence I cannot find that the minds of the parties ever met on any proposition.

I think, therefore, that the order was properly granted for the reason therein recited “ that the minds of the parties did not meet so as to form a contract.”

Order affirmed, with costs.  