On or about August 25, 1941, plaintiff and respondent fruit grower, Baker, and defendant and appellant, J. C. Watson Co., entered into an oral agreement whereby plaintiff agreed to sell and defendant agreed to buy five carloads of Hale peaches, at a specified price. By the terms of the contract, plaintiff Baker was obliged to pick, pack, and deliver the peaches to defendant company f.o.b. the cars at Home, Oregon, and to bill each car to defendant at Laramie, Wyoming, sending the bills of lading to defendant's place of business at Parma, Idaho, for payment at the contract price as each car was loaded. Pursuant to this agreement, plaintiff loaded at Home, Oregon, and shipped five carloads of peaches to Laramie, Wyoming, billed as aforesaid; whereupon defendant transmitted to plaintiff four checks drawn upon the First National Bank of Boise, Idaho, Parma Branch, in payment of the first four cars so loaded and shipped by plaintiff. *Page 592
The peaches were not stopped at their destination — Laramie, Wyoming — but, instead, were diverted by defendant to the LaMantia Bros. Arrigo Co., Chicago, Illinois. As the cars arrived at Chicago, the Chicago firm called defendant stating the peaches did not grade U.S. No. Ones on account of "curculio injury." Defendant then wired plaintiff as follows:
"Absolutely cannot accept peaches account you didn't give us U.S. One with certificate as agreed and stamped on boxes. Advise disposition of five cars.
(SIGNED) J. C. Watson Co."
To which plaintiff wired defendant:
"Its up to you to dispose of those peaches to your best advantage.
(SIGNED) W.E. Baker."
Defendant wired again that:
"We are not accepting peaches. Have stopped payment all checks account your failure deliver peaches as labelled U.S. One. Unless hear contrary immediately will handle for your account only.
(SIGNED) J. C. Watson Co."
The peaches were sold by LaMantia Bros. Arrigo Co. on the fruit auction ring in Chicago, and checks for the net proceeds of the sale were mailed to plaintiff. Plaintiff refused to accept the checks and returned them to that company.
This action was commenced November 29, 1941, to recover the contract price of the peaches. June 17, 1942, the cause was tried by the court, sitting with a jury. At the conclusion of the submission of proof by defendant, plaintiff Baker made the following motion for a directed verdict:
"Comes now the plaintiff and moves the court for an order instructing and directing the jury to return a verdict in favor of the plaintiff in the amount of $6053.65, together with $12.00 protest fees, with interest on each of said items at the rate of six percent per annum from September 3, 1941, upon the ground that if all the evidence introduced by the defendant in this case is taken and accepted as true, it fails to sustain the defense impleaded by the defendant, or any part thereof, and upon the further ground *Page 593 that the following facts are either admitted in the pleadings, or proved conclusively and without contradiction by the evidence:
"That these peaches were sold to the defendant under on oral contract at Home, Oregon; that it was agreed that they should be by the plaintiff, picked and packed and loaded in the cars at Home, Oregon, at the agreed purchase price stated in the complaint, and that they should be shipped to the defendant at Laramie, Wyoming, with the copy of the bill-of-lading mailed to the defendant, as directed, and that on the first four cars the defendant actually paid for the peaches and then stopped payment; that the defendant not only diverted these cars from Laramie, Wyoming, to Chicago, Illinois, but sold them to LaMantia Bros. Arrigo Co. in Chicago, Illinois, and that the act of the defendant in so diverting these cars from the point of shipment at Laramie, Wyoming, his act in re-selling them and re-billing them to LaMantia Bros., and his act in paying the purchase price on four cars constituted in law a complete acceptance by the defendant.
"That the defense impleaded in this case is a defense of non-acceptance; it is not a defense of breach of warranty with offset in damages. I believe that is the extent of our motion."
The trial court granted the motion and entered judgment in favor of plaintiff and against the defendant company for the sum of $6065.25, the contract price of the five carloads of peaches, with interest. The company then prosecuted an appeal to this court from the judgment.
In limine, it may be stated there is no dispute between the parties concerning either the contract to purchase the peaches or the price to be paid. While numerous contentions are made by appellant, actually, the record presents but one question, and it is decisive, to-wit: Were the peaches accepted, as contended by Baker, or not accepted, as contended by the company? In this connection, the record discloses the company pleaded:
"that it notified plaintiff that the defendant could not acceptthe peaches on account the plaintiff failed to deliver U.S. No. Ones as agreed, and that the defendant finally notified theplaintiff that it refused to accept said peaches and hadstopped payment on all checks; * * * and that unless defendant heard from plaintiff to the contrary, defendant would *Page 594 handle said peaches for the account of the plaintiff only; * * *." [Emphasis mine.]
And, on this appeal appellant urges:
"that the facts pleaded in the answer are amply sufficient to show both the defense of recission and recoupment, or a combination of the two defenses, and breach of condition subsequent."
To rescind a contract is to cancel and annul it. On the other hand, to recoup is to reduce the amount otherwise recoverable on account of some breach of warranty. If the contract sued upon here were cancelled and annulled, as insisted by the company, there could be no contract to breach. Hence, these defenses are so inconsistent that proof of one would necessarily disprove the other; in fact, these defenses flatly contradict each other. This court held in the early case ofMurphy v. Russel Co., 8 Idaho 133, 134, 67 P. 421, that:
"Under the provision of Sec. 4187 of the Revised Statutes [now Sec. 5-616, I. C. A.], the defendant is permitted to set forth in his answer as many defenses and counterclaims as he may have, and such defenses may be, to a certain extent, inconsistent with each other, but must not be so inconsistent that the proof of one would necessarily disprove the other."
See also Harshbarger v. Eby, 28 Idaho 753, 156 P. 619.
We come now directly to the discussion of the decisive question presented on this appeal: Did the companyaccept the peaches?
Sec. 62-308, I. C. A., of our Uniform Sales Act defines acceptance as follows:
"The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when thegoods have been delivered to him, and he does any act inrelation to them which is inconsistent with the ownership ofthe seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them." [Emphasis mine.]
This court construed Sec. 62-308, supra, in Gross Mfg. Co. v.Redfield, 48 Idaho 399, 282 P. 487, where the identical question under discussion was presented for decision. Following a lengthy review of pertinent authorities, this court held that a buyer is deemed to have accepted goods where, as in the case at bar, the goods have been delivered to him, *Page 595 and he does any act, for instance, selling part of the goods (in the case at bar all five cars of peaches were sold), which is inconsistent with the ownership of the seller, and that under such circumstances, the seller (in this instance, Baker) could "maintain an action for the price, as was done." To the same effect: Whatley v. Weston, Dodson Co., 289 Pa. 36,136 A. 849; Simonoff v. Parsons, 52 Okl. 600, 153 P. 152; Babcockv. Hutchinson, 4 Lans. (N.Y.) 276.
It will have been noticed the company pleaded it refused to accept and did "not accept the peaches"; in other words, the company wholly relied upon the defense of "nonacceptance" to defeat a recovery of the contract price of the peaches. The record shows, without dispute, the defendant company sold all of the peaches to the Chicago company. Surely the sale of the peaches by the defendant company constituted an "act inconsistent with the ownership of the seller", Baker, in that the sale of the peaches by the defendant company completely divested Baker of his title to and ownership of the peaches and vested title to and ownership of the peaches in the Chicago concern, to whom the defendant company sold the peaches. The sale of the peaches at once brought the defendant company within the provisions of Sec. 62-308, supra, and the rule announced by this court in Gross v. Redfield, supra. There is not one whit difference between the position of Baker, the seller in the case at bar, and Gross, the seller in Gross v.Redfield, supra. The facts as to a sale are the same and the statutory provisions are the same. Gross, the seller, recovered the purchase price of his merchandise, but Baker is denied a recovery. The effect of the majority opinion is to nullify the provisions of Sec. 62-308, supra, and to reverse Gross v.Redfield, supra, in that now, under the majority opinion, the sale of either a part or all the merchandise a buyer contracts to purchase is no longer so inconsistent with the ownership of the seller, as provided by Sec. 62-308, supra, and expressly held by this court in Gross v. Redfield, supra, as to render the buyer liable for the entire purchase price *Page 596 in an action by the seller to recover. Now, a buyer may sell all or any part of the goods he purchases without becoming liable to the seller for the price he has contracted to pay, by the simple, ever-ready device of wiring the seller the goods are not what the seller warranted them to be. Of course, if, as a matter of fact, goods are not what they were warranted to be, the buyer can always fully protect himself by simply refusing to accept the goods shipped to him; in which case, where the shipment is perishable in nature, for instance, peaches, as in this case, the seller should also be given an opportunity to protect himself by selling his peaches through a broker of his own choice. However, the real reason underlying the action of the defendant company in the case at bar — to use the vernacular — "the nigger in the wood pile," as disclosed by the record, is the fact that the price of peaches slumped heavily on the Chicago market. Of course that situation required the prompt use of certain peach buyers' [as well as out of state potato buyers'] old, well-known, quite threadbare "defense," to-wit: "You didn't give us U.S. No. Ones as agreed."
Finally, in the instant case, appellant had an opportunity to inspect the peaches at Home, Oregon, as well as at their destination — Laramie, Wyoming. The place where a purchaser is required to make inspection is the point where the goods are first received. [Bassi v. Walden, 64 Cal. App. 764,222 P. 866; Perryman Burns Coal Co. v. Northwestern Fire Marine Ins.Co., 223 N.Y. S. 559, 130 Misc. 396.] And, acceptance by appellant after it had an opportunity to inspect the peaches constitutes a waiver of the alleged defect of quality. [Caldwell v. Higgenbotham, (N.M., 1915), 151 P. 315; TwinCities v. Armstrong, 116 Okl. 237, 244 P. 196; Lewiston MillingCo. v. Cardiff, (C.C.A. 9th, 1920), 266 Fed. 753, 764;Western Forest Products Co. v. Woodhead Lmbr. Co., 92 Cal. App. 194,267 P. 901; 55 C. J., p. 444.]
It follows from what I have said the judgment in favor of Baker should be affirmed. *Page 597