Argensinger & Co. v. Cline & Sons

ON MOTION FOR REHEARING.

Beck, J.

*592. salís; con-return goods, *58In a petition for rehearing, plaintiff’s counsel complains of the statement of the foregoing opinion that the *59case involves only questions of fact wherein tliere is a conflict of evidence. The contract, as shown by defendant’s evidence, was to the effect that if the goods, when received, should not suit defendants, they could at any time return all or part of them, paying for those they kept or sold. Counsel for plaintiff's insist that, as defendants notified plaintiffs, upon the receipt of the goods, that the prices and goods were not satisfactory, and that the goods were subject to plaintiff’s order unless prices were changed, the defendants expressed an election to retain the whole bill; and that, as they afterwards sold a part of the goods, they can return no part of them, and must pay for all. It is insisted that, assuming the contract to be as defendant’s state it, they are liable for the whole bill of goods, and that, therefore, the question of defendant’s liability upon the contract, as it is claimed by them, is for determination in this case. The contract did not limit the right of defendants to return a part of the goods within any prescribed time, or to exercise within any time the option to return a part of them. It is possible that the contract required defendant to approve or reject the goods upon their receipt, but, as just stated, they could at any time exercise the option to keep a part and return the others. As long as the goods were in their possession, they could exercise this right. These terms of the contract were shown by defendant’s evidence. The fact that defendants, upon receipt of the goods, pointed out wherein they failed in price and quality to comply with the contract under which they were ordered, and demanded a correction of the bill to conform therewith, did not cut olí their right under the contract afterwards to retain a part of the goods and return the others.

The petition for rehearing is overruled.