Black v. Dudley

We conclude that the judgment and order appealed from must be reversed on account of the insufficiency of the evidence offered upon the subject of damages. Upon and for some time prior to May n, 1898, the plaintiffs, in the city of Rochester, N. Y., were wholesale manufacturers of, and dealers in, ready-made clothing; and the defendants, in the city of New York, were commission merchants, marketing cloths used for the making of such clothing. Upon May 11, 1898, the defendants wrote to the plaintiffs a letter of which the following is a copy:

“Messrs. Black & Meyer, Rochester, N. Y.—Dear Sirs: We send you inclosed samples of three styles of Oaxton cassimeres, cut from pieces. These were made originally on special order, and have sold well at 75c. We have seen the goods in the garment, and they make up with a good cassimere face. Gan deliver sample pieces at once.

“Yours truly,

Dudley, Battelle & Hurd,

“Per Bowne.”

The samples inclosed in the letter were small ones, and were what was known as “swatches.” The plaintiff Black looked at and examined them, and thereafter asked defendants to send on some sample pieces, as proposed. These 'sample pieces contained several yards each. No further particular examination was made of them by the plaintiffs; they being turned over to- their examiner, who inspected them to see that they were free from holes and other such imperfections, but who did not examine them closely, to determine the texture and component parts thereof. Thereafter, and from time to time down to August 17, 1898, the plaintiffs, under and in accordance with the letter and samples received by them as aforesaid, ordered of the goods in question from the defendants. They proceeded with the manufacture of suits of clothing therefrom, which, largely through traveling salesmen, they sold and delivered to their customers during the summer and fall of that year. Some time after this sale and delivery by them commenced,—and we shall refer more particularly to the date hereafter,—it is alleged that their customers commenced to make complaints in regard to the quality of the clothing purchased, and to return suits. Subsequently this action was commenced, wherein it was claimed by the plaintiffs that defendants, upon the sale of these cloths to them, under their letter and the samples inclosed, expressly warranted said goods to be cassimeres; that as a matter of fact they were not such cassimeres, but were made of cotton and shoddy to an extent which would not be permissible in a true cassimere cloth; that the cloth actually sold was substantially valueless; and they seek to' recover damages. Upon the trial of the case, which is the third one,—the juries having disagreed upon prior trials,—the parties litigated the questions whether defendants’ acts amounted to a warranty of the goods as cassimere; whether the latter were cassimere; whether plaintiffs ought not to have discovered, before accepting them, the quality and composition of the goods, assuming that they were defective and deficient; the amount of damages.

The learned trial justice charged the jury that, if they reached the question of damages, “you have a right to allow to the plaintiffs, and it is your duty to give them, such damages as you think they are entitled to. The damages, according to an agreement of counsel, cannot exceed $6.50 a suit for one hundred and twenty-eight suits, which would amount to" the sum of $832.” This was the amount allowed by the jury, and was the full price for which plaintiffs had sold 128 suits which were returned to them by their customers.

The case was, in a general way, tried and submitted upon the theory that, if plaintiffs were entitled to recover, they would be entitled tO' recover the difference between what the suits manufactured by them would have been worth if the cloth had been o's warranted, and what they were actually worth with the alleged defects in it. Some slight evidence was given by one of the plaintiffs, framed upon this theory. The suits made from this cloth, and which were sold by plaintiffs, and of which 128 out of 372 were returned, were sold at $6.50 a suit, and the plaintiff Black testifies: “Those garments were worth $6.50 a suit, —just what we sold them for. I wouldn’t dare offer them to the public at all! They are worth nothing, o's far as I know.” Very possibly, this evidence was intended to mean that the suits, if made of cloth such o's plaintiffs claimed they were entitled to, would have been worth $6.50, and, made of the cloth as it actually was, were worth nothing. The case, however, upon this branch of it, rested largely upon the evidence in regard to the return of certain suits of clothes. The facts in regard thereto seem to have been the controlling influence upon the jury in respect to the damages. As already stated, they allowed plaintiffs the full selling price of the 128 suits which were returned. By their verdict they assumed that plaintiffs, having sold these suits for $6.50, and having taken them back and refunded therefor, were entitled to the full selling price of the goods, as the measure of their damages. It therefore becomes essential to consider whether the evidence authorized this method of determining the damages. We shall especially consider whether the evidence warranted the finding that plaintiffs were compelled to take back these suits, and did suffer damage to the full amount of the selling price thereof. We do not think that the proofs warrant this view. The evidence indicates that plaintiffs received the orders for garments made of this cloth largely from

The indecisive character of the testimony upon these details naturally leads us to consider closely whether the evidence authorized the conclusion that plaintiffs were compelled to take back the suits, and could charge defendants for the selling price thereof, even if we assume that the suits returned were sold before plaintiffs learned of the defective quality of the cloth. The learned counsel for the appellants more than once made the contention that there was no sufficient evidence to show, as claimed by them, that plaintiffs sold any of these garments under such circumstances as compelled or authorized them to take them back and charge defendants. We think he was right in this contention. The evidence did not show that the garments were sold under any such warranty or representation that they were made of cassimere _as compelled plaintiffs to take them back, assuming that they were not made of such material. The plaintiff Black testified that his traveling salesmen were directed to sell them as made of such material, but there is not a word of evidence to indicate that this was done. The plaintiff Meyer testified that he sold some of the suits to customers under the representation or warranty, in effect, that they were made of cassimere, but none of the customers so named by him are amongst those who returned their purchases. The plaintiff Black testifies to selling some suits to customers who were amongst those who returned the same, but he gives absolutely no evidence from which we are able to discover that he sold them under any warranty or

Judgment and order reversed, and new trial granted, with costs to appellant to abide event, upon questions of law only; the facts having been examined, and no error found therein. All concur.