Finkelstein v. Morganstern

Urner, J., delivered the opinion of the Court. An order signed by tbe appellees, in Baltimore, on February 26, 1920, and .addressed to1 the. appellants in Yew York, called for the delivery “at once” of fifteen pieces of style 7614 serge cloth, and fifteen pieces of style 7301 of the same material, at designated prices, payable in sixty days. The purchase was procured by the appellants’ salesman, and the order was in terms subject to their acceptance and to certain printed conditions. The words “at once” were written in a blank space after the printed words “delivery about” on the order form presented hy the salesman.

Immediately upon their receipt of the order, the appellants, shipped fifteen pieces of style 7614 serge to the appellees, hut suspended delivery of the specified quantity of style 7301 pending further investigation of the appellees’ financial responsibility. After some correspondence between the parties on that subject, extending over a period of ten days, in the course of which the .appellants requested payment of $2,000 on account before shipment of the goods, not yet delivered, the appellees returned the serge already received and wrote the appellant to cancel the unfulfilled order. The appellants assented to the rescission as to the fifteen pieces of style 7301 serge which had not been shipped, hut demanded payment of the contract price, amounting to $2,678.12, of the style 7614 serge which had been delivered and returned, and which the appellants, as they assert, now hold at the appellees’ risk. Tbe trial of this suit by the appellants, to recover the sum thus claimed has resulted in ,a judgment for the appellees, which is the basis of the present appeal.

The only exceprtions relate to' certain instructions to the jury. There was a conflict in the testimony as to the circumstances under which the order for the goods was prepared and signed. The salesman who obtained it from tbe appellees ³⁹⁰ testified that as originally signed it called only for fifteen pieces of 7614 serge, and that the other item, of fifteen pieces of 7301 serge, was inserted at a later hour of the same day as a result of further negotiations. According to the testimony of the appellees, both orders were given at the same time and were included in the agreement of purchase when it was signed, and delivery at once of both quantities of the serge was stipulated because both were needed for simultaneous use in the manufacture of clothing.

The trial court granted an instruction, at the request of the appellees, that if they ordered the goods mentioned in the offer to buy, and it was intended that all the goods should be shipped at the same time, and they so notified the salesman of the appellants! when the order was given, then the appellees “had the right to refuse to accept a part of the goods mentioned in said offer tO' buy until all tbe terms of the contract had been complied with by the seller.” The Uniform Sales Act provides (sections 44, 45; Code, art. 83, secs. 65, 66) t “Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them; but if the buyer accepts or retains the goods so delivered, knowing that the seller is not going to perform the contract in full, he must pay for them at the contract rate. “Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalment.” The stipulation of the1 order in this case was that the goods ordered were to be delivered at once. Tbe acceptance of the order by tire appellants was indicated by the shipment of part of the goods, one of the printed conditions on the order form being that the “seller may at his option accept this order in writing or by shipment of tbe merchandise or any part thereof.” It was clearly not the purpose of the order that delivery of a portion of the goods might be deferred. The contract required the immediate delivery of all the goods which it described. This was a duty which the appellants ³⁹¹ could assume only as a whole, and they were not entitled to qualify it in part by imposing a new condition to which the appellees had not agreed.

Hazel Hill Canning Co. v. Roberts, 129 Md. 306 . The instruction to which we have referred was, therefore, correct in principle and was properly granted, unless that conclusion is prevented by the following printed provision of the contract: “The amount of credit extended or to be extended hereunder may be limited or terminated by seller at any time with respect to undelivered merchandise, in which event seller may, at its option ship same cash on delivery, or demand cash in advance of shipment and store the merchandise at seller’s place of business or elsewhere at risk and for account of buyer, and buyer agrees in either such event to accept the merliandise upon such terms.” It was the evident purpose of that provision to enable the appellants to limit or terminate credit with respect to goods which were undelivered consistently with the contract of sale. The retention of half of the goods for a considerable period of time was. contrary to the specific provision for immediate delivery in the accepted