Rhodesia Manufacturing Co. v. Tombacher

This action was brought to recover the balance of the purchase price of certain rolls of cloth; defendants having accepted and paid for about one-half of them.

[ 1 ] It was proved that the plaintiffs, manufacturers, were aware of the purpose for which the goods were to be used, namely, the making of clothes. There was, therefore, an implied warranty of their availability for that purpose. Bierman v. City Mills Co., 151 N. Y. 482, 45 N. E. 856, 37 L. R. A. 799, 56 Am. St. Rep. 635. The question most seriously litigated was plainly the quality of the goods, and on this point the testimony on defendants’ behalf as to the goods being what is known as “shaded,” namely, not of sufficiently even color to be used, was clear and convincing—indeed, well-nigh uncontradicted.

[2,3] The only remaining question was that of acceptance. Defendants showed sufficiently an established custom in the trade to send goods of this kind immediately on receipt to a sponger, by whom they were examined; if then found “shaded,” it is the custom for the sponger to notify both the vendor and vendee of the defect. It is clearly shown in the case at bar that this was done. The vendors sent their “adjuster,” in the customary endeavor to settle the difficulty, but without avail. The goods remained at the sponger’s at the risk of the plaintiff, which persisted in its refusal to admit that the goods were “shaded.” Six months afterwards, for further assurance, the defendants had' them examined by another sponger, whose testimony confirms that of the first. It is plain that there was no acceptance.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.