I concur in granting a new trial but not upon all the grounds stated in the majority opinion. I do not think the authorities cited support the conclusions reached by the majority opinion, as to the legal effect, or, rather, lack of effect, of diversion of shipment from Laramie to Chicago by the consignee.
In Kitterman v. Eagle Pine Co., 122 Ore. 137, 257 P. 815, from which the majority opinion quotes, there was no question of diversion of a shipment, as the case was submitted on stipulation of facts; and it appears that the only question submitted to the court was as to when and where the inspection was to take place. As bearing on that question, the opinion,inter alia, states as follows:
"Upon defendant's order, plaintiffs, between July and November, 1923, loaded a total of 20 cars of dry pine lumber to be shipped to the various customers of the defendant at Council Bluffs, Iowa, and other designated points in the middle west. The lumber was hauled by the Oregon Coast Railway Company over its line from plaintiffs' mill to Grants Pass and from there it was transported *Page 588 on the Southern Pacific lines to ultimate destination. Defendant's office and principal place of business was at Grants Pass or the junction of the two railway lines above mentioned.
"It is conceded by counsel that the decision of the case hinges upon the construction of the contract relative to the matter of inspection. No question of fact is involved.
. . . .
"Was it the duty of defendant to inspect the lumber at Waters Creek, the point of shipment; or Grants Pass, Ore., designated as the place of f.o.b. delivery; or at the point of final destination?
"The contract makes no express provision relative to inspection. We are to determine what was within the contemplation of the parties concerning the place of inspection by the nature and character of the contract and by the conduct of the parties in reference thereto."
It also seems to me that the majority opinion misapprehends the facts of Descalzi v. Wm. S. Sweet and Son, 30 Rawle I. 320,75 A. 308, 27 L. A. R., N.S., 932, 136 Am. St. Rep. 961, from which quotations are made. In the latter case, there was no diversion of the shipment until after the purchaser had declined to accept the peaches shipped and notified the vendor of the inspection, and that they did not come up to the standard of peaches contracted to be shipped. After the vendor refused to take over the shipment and wired the purchaser, "Car yours care not what you do with it . . . .", it was then that the purchaser diverted the shipment from Providence to Boston and had them sold on the market as the property of the shipper.
So it will be seen, from an examination of the two principal cases relied on, that neither one deals with or is authority for the holding, that the diversion of the shipments involved in this case from Laramie to Chicago was not acceptance of the goods purchased. When the contract of purchase was made, it was understood that the shipments were to be made to Laramie, Wyoming; and the shipments were made in accordance therewith and bills of lading read as follows:
"Received, . . . . at Home, Oregon Aug. 30, 1941, from W. E. Baker Home, Oregon the property described below, . . . . Consigned to J. C. Watson Co. Destination Laramie State of Wyoming, County of ........... Route Union *Page 589 Pacific. . . . 1120 Double Layer Bxs Peaches 420 Single Layer Bxs Peaches . . . . Allow inspection."
When the consignee diverted this shipment of perishable property from Laramie to Chicago, he waived the right of rescission and return of fruit and elected to seek his remedy in damages, if any, under the provisions of the Sales Act, Secs. 62-308 and 62-309, I. C. A., reading as follows:
"62-308. What constitutes acceptance. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
"62-309. Acceptance does not bar action for damages. In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know such breach, the seller shall not be liable therefor."
See Secs. 48 and 49 and annotations, Uniform Sales Act (Vol. 1, Uniform Laws Anno., pp. 270-297.)
It is a wholesome provision of the law, and highly conducive to commercial transactions, to allow a purchaser, who buys on samples or representation, to accept and use or sell the goods, even though below the warranty, and then recover reasonable damages for the breach of warranty or representation, for the reason that customers want and sometimes require the goods, even though not of the grade or quality they most desire.
Here the consignee rendered it impractical, if not impossible, for the consignor to accept the shipment after it reached Chicago and deal with it at that point or return it to Laramie, or Home, Oregon. The diversion of the shipment, and to that extent, the acceptance of the same, did not deprive the consignee of his right to claim damages, under Secs. 62-309, supra, and 62-507, for breach of any warranty that may have been made. Such a contingency *Page 590 is specifically provided for by Subd. 1 (a and b) of Sec. 62-507, providing as follows:
"1. Where there is a breach of warranty by the seller, the buyer may, at his election:
"a. Accept or keep the goods and set up against the seller, the breach of warranty by way of recoupment in diminution or extinction of the price.
"b. Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty."
Now as to where the inspection was to be made is properly an issue for the jury to determine on the trial after all the evidence is in; and it is also a question for the jury, as to whether or not there was a warranty that the peaches shipped should be "grade as U.S. No. ones."
It was up to the purchaser to observe some of the admonitions of the Golden Rule, which the Rhode Island court invokes in the quotation contained in the majority opinion. He could not make a contract for purchase and shipment of a number of carloads of perishable goods like ripe peaches and have them shipped to him at Laramie, Wyoming, 847 miles run by rail from Home, Oregon, and, at the same time, give his check in payment for the same; and then divert the shipment and, after they reached Chicago (1051 miles farther east) stop payment on the checks and then notify his shipper that the fruit was on the cars in the Chicago yards, and that he could do as he pleased with them.
"There are two kinds of acceptance, —" said Justice Lamar, in D. L. W. R. Co. v. U.S., 231 U.S. 363, 58 L. ed. 269, 273, "one of quality and the other of title. They are not necessarily contemporaneous. There may be an acceptance of quality before delivery, as where goods are selected by the purchaser, delivery and transfer of title being postponed until a later time. Or, there may be an acceptance of title withoutan acceptance of quality; so that in many cases, after the title has passed, the purchaser may recover damages if the goods, upon inspection, prove to be of a quality inferior to that ordered." (Italics supplied.)
Where an article is purchased and, after its receipt, is found defective by the vendee or not of the standard, grade, quality or kind ordered, it is sometimes easy and convenient to return it without loss or depreciation and at slight cost of redelivery; but in many cases of long distance, *Page 591 shipment is too expensive to return the property to the vendor at the place from which shipped, and, due to lack of agent or acquaintance at place to which the consignment has been shipped, it is wholly impracticable for the vendor to take possession and dispose of the property at the distant point to which it has been diverted. The law therefore requires the purchaser to take charge of the property and dispose of it as the vendor's agent, to the best practical advantage, in case the vendor refuses to accept the return of goods. (Jones v.Bloomgarden, 143 Mich. 326, 106 N.W. 891, 24 A.L.R., p. 1446 n; Hitchcock v. Griffin S. Co., 99 Mich. 447, 41 Am. St. Rep. 624, 58 N.W. 373; Tripis v. Gamble (Tex.Civ.App.)28 S.W. 244; Rubin v. Sturtevant, 26 C.C.A. 259, 51 U.S. App. 286, 80 Fed. 930.)
It is true, that if the fruit were not up to the warranty (if there was a warranty), the purchaser may have such damages as he sustained; but he had the fruit on his hands after diverting the shipment to another destination. (West v. Prater, 57 Idaho 583, 596, 67 P.2d 273; Grisinger v. Hubbard, 21 Idaho 469,481, 122 P. 853.)
Appellant should not be allowed to defeat respondent's action on the theory of rescission of the contract; but it should be allowed to offset the purchase price by whatever legal damages (if any) it has sustained for breach of warranty of fruit shipment, if the jury finds that there was any breach of warranty.