Willard v. Tatum

HAYNES, C. Plaintiff is engaged in the business of manufacturing engines and other machinery in Chicago, Illinois, and the defendants are copartners doing business in San Francisco. Plaintiff brought this action to recover a balance upon book account, and also the amount of a promis[731]sory note, due him from defendants for goods sold. There was no contest as to these claims, hut defendants, by way of counterclaim, alleged, in substance, that prior to 1887 they purchased from plaintiff several “Davey Safety Engines”—one of four-horse power, for $430; four of two-horse power, for $255 each; and one of one-horse power, for $191.25—and paid for said engines $1,551.25; that they proved unsalable, and on April 27, 1887, defendants wrote plaintiff that these engines were “dead stock”; that they had sold but two, leaving on hand one four-horse power, three two-horse power, and one one-horse power; that they had ordered these engines relying on plaintiff’s representations, and that the engines had not come up to them; and asking for a proposition under which they might return them; that plaintiff thereupon agreed by letter that if defendants would have the engines boxed and returned to him, freight prepaid, he "would credit defendants the full amount they had paid for them. Afterward it was agreed they might be returned by vessel around Cape Horn and via New York. March 27, 1888, defendants shipped the engines, but included one more two-horse power engine than was named in the proposition. After they were shipped, and the vessel was at sea, and on receipt of the bill of lading, plaintiff wrote defendants, refusing to give credit for the engines, but offering to take care of them, and make the best disposition he could for defendants. This change of purpose was based on an alleged change in the patterns of the engines, made after the agreement to take them back, by which it was claimed the old style was not worth so much as before. The court found for defendants for the price of the motors (excluding the extra two-horse power engine not specified in the original proposition), less the amount of plaintiff’s claim specified in his complaint, and gave judgment for defendants for $871.87 and interest. Plaintiff’s motion for a new trial was denied, and this appeal is from the judgment and the order denying a new trial.

Appellant’s contention that the evidence is insufficient to justify the findings cannot be sustained.

1. That an extra engine was shipped is true. But defendants did not make the return and acceptance of the others conditional upon the acceptance of it by plaintiff, nor was he charged with it by the court. The cases cited by appellant