Mayer v. Northwood Textile Mills, Inc.

VALLÉE, J.

Plaintiff, as assignee of Emanuel Kramer, brought this action to recover the purchase price paid defendant for yardage upholstery material! The material was purchased by sample and by description. The complaint alleged, and the court found, that the material delivered did not conform to the samples submitted or to the quality ordered; that, on ascertaining the inferior quality of the material, Kramer rescinded the purchase and tendered the material to defendant, which refused to accept it. Judgment was for plaintiff for the purchase price and an amount paid for freight. Defendant filed a cross-complaint against Kramer in which it alleged that about November 5, 1947, Kramer converted to his own use certain other upholstery material belonging to defendant. The judgment on the cross-complaint was for plaintiff.

The Case on the Complaint

Defendant’s claims for reversal are; (1) there is no evidence to support the buyer’s claim that the hulk of the goods delivered did not correspond to the samples identified in the

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written contract of sale; (2) the buyer’s use and retention of the goods barred any claim of rescission of the sale; (3) the buyer lost any right of rescission by his failure to act promptly. The claims are untenable.

Defendant’s office was in Philadelphia. Kramer, doing business in Los Angeles, ordered the material by samples and specific description on April 28, 1947. There was ample evidence that the material delivered did not conform to either the samples or the description. Kramer so testified. Experts called by plaintiff so testified in detail. The order described two types of material. The court had before it a sample of one type and some of the material delivered,' which was to conform to that sample. It also had before it some of the second type of material delivered. The trial judge was thus in a position to determine from an inspection of the material delivered whether it conformed to the description of that ordered.

The material was shipped in two lots. The first lot, shipped by rail freight, was delivered about the middle of May, 1947. The second lot was shipped by water. A few days after Kramer received the first lot, it was unpacked and put into bins. Samples were -cut and distributed to prospective customers, and a small piece was sold, before an inspection was made. About two weeks later .the customer complained. Kramer then inspected the material and discovered that it was defective. Kramer’s son went to Philadelphia, called on defendant during the first week in June, 1947, informed its secretary and comptroller of the customer’s complaint and that Kramer had then thoroughly inspected the lot received by rail and found that it did not conform to either samples or description. The secretary asked Kramer’s son to wait until the balance of the order had been received by water and if it was found that the bulk of the shipment did not conform, to let him know. The material shipped by water was delivered to Kramer in separate lots about the second week in June. He immediately inspected it and found that it did not conform to either samples or description. On July 19,1947, Kramer tendered the material he had received to defendant upon condition that defendant pay him the price thereof and the amount expended by him for freight. Defendant declined the offer.