Merehin v. Ball

Ross, J. — .The complaint charges, and defendants by their pleading admit, that the plaintiffs sold and delivered to defendants a certain lot of wool at the rate of twenty and one half cents per pound, “subject to graders’ rejection.” It is" alleged in the complaint that the term “graders’ rejection” was understood by the parties to mean, and is generally understood among wool dealers [206]in the city of San Francisco, where the transaction occurred, to mean, that upon the receipt of the wool by the defendants they should place it in the hands of persons skilled in grading wool, known as wool graders, for the purpose of ascertaining what portion, if any, of the wool is taggy and scabby; and if any portion of it should be found to be taggy and scabby, that defendants should forthwith notify plaintiffs, and furnish them with a certificate of the graders to that effect, giving the weight and amount of the wool found taggy and scabby, which should be deducted from the gross amount delivered to the defendants and returned to plaintiffs, and the balance of such gross amount should be paid for forthwith at the rate per pound agreed on, — plaintiffs to be apprised of the result of the grading within a reasonable time, in this ease ten days, from the delivery of the wool to defendants.

The meaning of the term “graders’ rejection,” as alleged by the plaintiffs, is not controverted by the defendants, except they allege in their answer that it also includes the right of the graders to reject any or all wool of a substantially different character from that purchased.

Thirty-three of the forty sacks of the wool delivered to defendants were graded and accepted by defendants and by them shipped East; and they also took from one or two of the remaining sacks enough wool to fill an order they then had. But all these remaining sacks the defendants claimed to have been rejected by the graders, and that the plaintiffs were notified of such fact within a reasonable time. But the plaintiffs, upon receiving the notice, contended that the wool had not been graded in accordance with the custom and the understanding of the parties, in that the bales claimed to have been rejected were not examined fleece by fleece, and refused to abide by the rejection. At the trial in the court below a good deal of testimony was given as to the custom in San [207]