Hosiery Mills v. G. C. Hall & Son

TYLER, P. J.

Plaintiff recovered judgment for the sum of $2,167.93 and costs, and defendant appeals.

The facts relating to the transaction show that about November, 1919, defendants purchased from plaintiff, through an agent, a certain quantity of hosiery. This particular purchase was made by sample and no written order for the goods was signed by the defendants. On February ¡10, 1920, before delivery was made, defendants wrote directly to plaintiff at its mills in Nashville, Tennessee, in- , closing an additional order for 1500 dozen hose. This order designated the number, kind, size, etc., of the hosiery desired. Plaintiff in a written communication acknowledged receipt of the same and inclosed two copies of what is designated in its letter “confirmation copies” to cover the proposed purchase. The letter requested that one of them be signed and returned. The confirmation order, so called, contained a recital of the defendants’ order as' to kind, number and size of the hosiery ordered. These recitals were typewritten upon an order sheet bearing the name and insignia of plaintiff’s' mills. The letter and confirmation orders differed somewhat from defendants’ proposal as to terms. The letter contained a postscript reading “our terms are net 30 days.” The confirmation copies likewise differed in this respect, for they expressly provided “Terms, net 30 days, F. O. B. Mills”’ In addition thereto and as

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part of the body thereof they provided “no expressage allowed on sample. This order is not subject to cancellation except per terms mentioned ...” In the upper left-hand corner, inclosed in brackets, there was printed, among other conditions, a statement to the effect that any claim that the quality of the goods was not in accordance with the terms of the contract would not constitute cause for cancellation, and that the complaint as to quality should be made within fifteen days from the time of the delivery of the goods. This instrument was signed by defendants, and ‘ plaintiff made deliveries in accordance with its terms. The first installment was received by defendants on July 13, 1920, and the remainder between that date and August 19, 1920.

Defendants are commission merchants and the goods as received by them when sold were supplied to the trade in the original boxes. On September 15, 1920, defendants advised plaintiff that certain of the merchandise delivered did not comply with the sample and that portions of the goods sold had been returned to them by their customers as being inferior in quality. Considerable correspondence was had between the parties concerning the matter. Finally plaintiff advised defendants that the hosiery delivered measured up to the sample in every particular, and it referred defendants to the printed clause in the contract existing between them which provided that complaints to be valid must have been made fifteen days after shipments were received. It also called attention to a further printed condition giving plaintiff the right to replace any defective merchandise and it advised them that the company was ready to abide by the contract and replace any quantity of the merchandise that was not right. Certain samples were forwarded by defendants to plaintiff for its inspection, but plaintiff informed defendants that these measured up to the sample. The parties being unable to reach a settlement concerning their differences, defendants on the twelfth day of October, 1920, inclosed plaintiff a check for the sum of $350.06 in payment of the portion of the merchandise they had kept or disposed of, and they also reshipped to it the balance of the hosiery which they claimed to be defective. The goods so returned were, after notice to defendants, sold by plaintiff at public auction and the proceeds