American Brass & Copper Co. v. Ingersoll

The defendants placed an order-with the plaintiff for “25 gro. Spring Brass Toe Clips,” of which ten gross were to be shipped at once and the balance as required. In fulfillment of the first installment of ten gross, 1,440 toe-clips were delivered to the defendants, who made payment therefor without objection.

The remainder having been subsequently sent, and having been received and retained by the defendants, this action was brought to recover the purchase price. The sole issue litigated was how many toe clips -were required to fill the order. The. defendants claimed that by the usa^e of the trade and the understanding of .the parties “25 gro.” meant twenty-five gross pair, and that the plaintiff having delivered only single toe clips, that is 144 to each gross, but half the quantity contracted for had been received.- The justice adopted the plaintiff’s construction that the agreement contemplated. single toe clips. This was warranted by .the oral, and *784written evidence introduced on the trial. The unequivocal language of the Order, containing no; reference to pairs, opposes .the defendants’ contention. Moreover,'their own. catalogue,- which was produced on the trial, is inconsistent with their position. They maintained that .toe clips were"-invariably sold by the pair. Yet in their Own catalogue, toe clips áre not quoted by the pair, notwithstanding the testimony of One Of the defendants .that every article sold by the pair was therein so quoted.^ 1 ;

Finally, the defendants recognised the plaintiff’s theory" Of the contract by-accepting 1,440-toe clips'as the equivalent of the first ten gross.

It is true they sought to overcome the presumption arising from their acquiescence,, by ascribing the acceptance and the consequent payment to the oversight of an employee. The inconclusive testimony offered to support-this, explanation failed to convince the justice. The exceptions urged are trivial and the issue of fact •having "been determined with fairness, - the judgment- should-, n&t be disturbed.- • ••

Freedman, B. W, and MacFeán, Jv concur.

Judgment affirmed, with costs to the respondent.