Summary
In Foot v. Bentley (44 N.Y. 166) it was held that on a sale of goods by sample with warranty the warranty survived acceptance, but it seems that that case was decided upon the point that the transaction amounted to an executed sale with warranty.
Summary of this case from Staiger v. SohtOpinion
Argued September, 29th
Decided December 29th, 1870
Francis Kernan, for the appellants. D.M.K. Johnson, for the respondent.
One of the principal grounds relied upon by the appellant's counsel for the reversal of the judgments appealed from, is that the paper of March 21st, 1863, made by the defendant's entry clerk, stating the number of packages of tea bought by the plaintiffs, the total sum to which they amounted, and the plaintiff's subsequent order to forward the tea, being the only written evidence of the bargain, parol evidence of the warranty should have been excluded, or not considered. The answer is, that on the 19th of March, when the bargain was made, it was not known to the plaintiff, or the defendant's agent, how many packages of tea the defendants had of the kind indicated by the sample, all they had was included in the purchases. This paper simply afforded the information necessary to enable the plaintiff to forward his note for the proper amount at four months; beyond that it amounted to nothing more than an admission that a sale had been made; it did not effect one. ( Filkins v. Whyland, 24 N Y, 338, 341.) In Jeffery v. Walton (1 Stark's Rep., 385), application was made to the plaintiff by the defendant's son, in defendant's behalf, for the loan of a horse, he answered, that he had none except a black horse who shied, that if he took him on hire he must be liable for all accidents; on these terms the bargain was made at the rate of two guineas a week for six weeks; after the bargain a memorandum was made by the plaintiff, and kept by him, in these words: "Six weeks, at two guineas a week;" signed Walton, Jr. The horse shied, and in consequence was injured; in a suit for damages the question was, whether parol evidence of that portion of the agreement, in which the defendant agreed to be liable for all accidents was admissible, and it was held, that inasmuch as the written memorandum regulated only the time of hiring, and the rate of payment, parol evidence was admissible to prove the agreement to be responsible for all accidents. In that case the price and time was known to both parties; in this case the number of packages bought was not. The bill or memorandum referring evidently to what had been bought, simply stated the number, weight, and value at the price previously agreed upon to enable the plaintiff to transmit his note for the true amount. (See Huson v. Henderson, 1 Foster, 224; Allen v. Pink, 4 Mees. Wels., 140, and 24 N.Y., 339.)
It was also objected, that, because the plaintiff did not, at the earliest practicable time after the tea was received in store, examine it, and, on account of its being of less value than the sample, offer to return it, he ought not to recover; and in support of that proposition the case of Reed v. Randall ( 29 N.Y., 358) was cited. The facts in that case did not, as the court decided, constitute a warranty; and it was disposed of upon that ground. In this case the warranty is found as a fact. No obligation, therefore, existed requiring the plaintiff to return, or offer to return, the property warranted. ( Muller v. Eno and others, 14 N.Y., 597.) The remaining question arises upon the exception taken to the admissibility of the letter-press copies of the plaintiff's letters addressed to the defendants. We are of opinion that they were not in any sense original papers, and were, in their character, copies to the same extent that other copies carefully compared would have been, neither of which could be read in evidence without first giving notice to produce the originals; and hence, in our judgment, the exception was well taken, and the judgment must, for that reason, be reversed.
This is an action for a breach of warranty in the sale of tea. Plaintiff recovered, and defendants appealed.
When did the sale become operative and valid? There was no compliance with the statute of frauds at Rome, when Cook, the agent of defendants, exhibited the sample and had the negotiation for the sale, and the tea was not changed or altered in any way in the city of New York. It remained there just as before, in defendants' storehouse, and covered by their insurance. Hence, there was no delivery of the tea until it was shipped in May, 1863. The sale was not consummated by the invoice sent March 21st, because that was not intended by the parties to embody the contract; and it was not "subscribed," as required by the statute. (26 Wend., 339.) The sale, therefore, was consummated, and the contract of sale became valid and operative, at the time of the delivery of the tea and its acceptance in May, 1863; and it must be treated as if the entire contract was made upon that day. ( 5 N.Y., 37.) This must then be treated as an executed sale with warranty; and the plaintiff was entitled to recover, without any offer to return the tea for any breach of the warranty.
But the court erred in receiving the copies of the two letters, dated June 20 and June 22, 1863. The fact that a party keeps letter-press copies of letters, does not obviate the necessity of producing the originals, or of laying the foundation in the ordinary and usual way for secondary evidence. For this error the judgment should be reversed, and a new trial granted, costs to abide the event.
Judgment reversed, and new trial granted, costs to abide the event.