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to their principals, but they cannot buy an inferior grade of goods and ship them as a compliance with the order without being liable to their principal for damages. The difference between the case of vendor and purchaser and of a foreign broker and his own principal is not that in one case there is a liability for damages and in the other no liability; the difference is in the measure of damages in the two cases. Cassabogiou v. Gibb, 11 Q. B. D. 797.
The defendant next contends that the sale in this case was a sale by sample, and so far as the three hundred bales is concerned, that they were equal to the sample of thirty-five bales; that so far as the thirty-five bales was concerned, they were a mere sample shipment, and the quality was immaterial. We think the defendant is wrong in both contentions. The letter ordering the first shipment distinctly said that the wool was to be one-third Lincoln, one-third one-fourth blood and onethird three-eighths, and this order was accepted. It was clearly a sale by description. So, too, the cables did not order the wool similar to the sample lot; in fact, it would have been impossible, for at the time the cables were sent the first shipment had not arrived in New York. Both the cables ordered wool half three-eighths and half one-fourth. This also was clearly a sale by description, and the trial judge should so have charged. Instead of doing so he charged that it was for the jury to say whether the plaintiff was to get the grades generally known to the trade by the description or whether he was to get the same kind or similar kinds that he had been receiving in prior years. This error, however, was injurious to the plaintiff and not to the defendants. He further charged that “the rule as to selling by sample is this: That what is sent thereafter must substantially comply with the sample, and if it does not, the purchaser is under no obligation to keep it.” As applied to the present case this charge also was inaccurate. The true rule prior to our codification of the law relating to sales is thus stated in the last English edition of Benjamin on Sales 616: "The implied condition that goods bought under specified commercial description should conform therewith is not excluded by the fact that the
sale is by sample, or even after an inspection of the bulk. A sample is looked on in such case as a mere expression of the quality of the article, and not of its essential character, and notwithstanding the bulk be fairly shown, or agree with the sample, yet if the bulk does not reasonably answer to the description the seller is liable.” Citing Mody v. Gregson, L. R., 4 Er. 49. Among the cases cited in Benjamin, Azemar v. Cassella, L. R., 2 C. P. 431, 677, is similar to the present case. The same rule of law is stated in the Sales act of 1907 (Pamph. L., p. 316, § 14). This act did not take effect until after the transactions now in question, but it was a mere codification of the then existing law in this respect. The charge of the court, while erroneous; was injurious only to the plaintiff, and the defendant is not injured thereby.
The next complaint is that the plaintiff could not accept the goods and sue for breach of the warranty. It is enough to say as to this that the law is settled to the contrary. Benj. Sales (5th Eng. ed.) 1001; Sales act of 1907 (Pamph. L., p. 337, § 69b).
The plaintiff was allowed to recover the following itemsfirst, the difference between the purchase price paid by him and the amount received on the sale; second, the loss of profits on the sale to the Cleveland Worsted Company; third, damages paid that company to settle its claim against him; fourth, freight on wool shipped from Cleveland to Boston for resale. It was proper to include all of these items in the plaintiff's claim for damages if the case was one between rendor and vendee, except perhaps the freight from Cleveland to Boston. The subject was dealt with by the writer of this opinion in Lodge & Shipley Co. v. Binnse, 24 N. J. L. J. 430. That they were entitled to recover profits on the resale is hardly open to question. It was held in that case, on the authority of Borries v. Hutchinson, 18 C. B. (N. S.) 445; Die Elbinger Actien Gesellschafft v. Armstrong, L. R., 9 Q. B. 473, and Grebert-Borgnis v. Nugent, 15 Q. B. D. 85, that damages which the vendee was under obligation to pay to a sub-vendee were also recoverable when they are such as inay reasonably be supposed to have been in contemplation of both
parties at the time they made the contract as the probable result of its breach. The freight paid on the shipment of the wool from Cleveland to Boston could only be recoverable if that expense was reasonably incurred in the effort to market the goods which had proved inferior to the description. No objection was made at the trial to this portion of the judge's charge, and it is therefore not open to the defendant on this rule.
The rule is discharged, with costs.
THE STATE, DEFENDANT IN ERROR, V. GIUSEPPE AL
BERTALLI, PLAINTIFF IN ERROR.
Argued February 16, 1909—Decided June 7, 1909.
Upon a sale of goods the vendor delivered to the vendee a memorandum
of the sale, and retained a carbon copy. Held, that the carbon copy was admissible as evidence as a duplicate original for the purpose of showing the nature and terms of the transaction.
On error to the Bergen Quarter Sessions.
Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and PARKER.
For the state, John S. Mackay (Ernest Koester on the brief).
For the plaintiff in error, Wendell J. Wright.
The opinion of the court was delivered by
SWAYZE, J. The plaintiff in error was convicted for the illegal sale of liquor. The controversy reduced itself at the trial to the question whether two gallons of wine, which had been delivered to one Merkindino, had been sold to her, or
had merely been given to her in exchange for a portion of a quantity which had previously been sold, that. quantity being above the quantity for which the defendant needed a license. The defendant offered in evidence a duplicate bill for the goods which had been delivered to Merkindino, which was in the nature of a sales slip. The testimony showed that a white slip and a yellow slip were made out at the same time, one being a carbon copy of the other; that the white slip was delivered to Merkindino and the yellow slip retained by the defendant. This slip contained a memorandum of the exchange of wine and showed that the amount paid by Merkindino included nothing on account of the wine. It, therefore, tended to corroborate the testimony on the part of the defendant and the testimony of Mrs. Merkindino herself on cross-examination. The paper was excluded, seemingly because it was supposed to be a mere copy. We think this view was erroneous. The white slip and the yellow slip were duplicate originals, and while they were copies one of the other, the yellow slip was as much an original as the white slip. The fact that it was a carbon copy instead of being written with pencil or pen and ink is not significant. This error was clearly prejudicial to the plaintiff in error, and the judgment must accordingly be reversed.
In reversing this judgment, however, we must not be understood as expressing approval of the form in which the matter is presented. The parties have apparently undertaken to bring the case up under section 136 of the Criminal Procedure act, but it is evident from an inspection of the record that the whole record is not before us; in fact, the judge merely certifies “that the foregoing is a true statement of the facts upon the trial and the facts are set forth in narrative form. We have accepted the signature to this certificate as amounting to a signature of the bill of exceptions which the statement shows the defendant prayed and the judge sealed. Strict practice would require that exception to be signed and sealed separately, and not at the conclusion of the whole statement of facts on the trial.
Winter v. Schoenfeld.
78 N. J. L.
MICHAEL WINTER V. ABRAM L. SCHOENFELD.
Submitted March 19, 1909-Decided June 7, 1909.
In an action of indebitatus assumpsit, where the plaintiff relies only
upon the common counts, the defendant cannot, by plea or notice of recoupment, claim damages sustained by reason of any cause of action arising out of the contract upon which the indebitatus assumpsit is rested. Bozarth v. Dudley, 15 Vroom 304, followed.
On demurrers to pleas.
Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and PARKUR.
For the plaintiff, William A. Lord.
For the defendant, William Ilamilton Osborne.
The opinion of the court was delivered by
SWAYZE, J. The declaration is in the ordinary form of the common counts in assumpsit; annexed is a bill of particulars stating that the action is brought to recover the amount due on a book account. The detailed statement of the items follows, showing a charge of $975 for rent from December 1st, 1907, to December 1st, 1908, inclusive, upon which $100 is credited, leaving a balance due on what is called the rent account of $575; a charge of $200 for the amount paid for license, with credits of $150, leaving $50 balance on the license account; a charge of $24 for beer irom November 27th to December 4th, 1908, with a credit of $6, leaving a balance due of $18. Three pleas are interposed. The first is the ordinary plea of non-assumpsit. The second plea avers that the defendant, in August, 1907, bought a hotel and café business of the plaintiff, for which $2,000 was paid; that the plaintiff, before the purchase, represented that he held a ten years' lease of the hotel premises which had eight years to run; that the rep