Polson Logging Co. v. Neumeyer

ROSS, Circuit Judge (after stating the facts as above). [1,2] Whether tested by the strict rules of the common law, or the rule contended for by the defendants in error, requiring only a substantial compliance with the terms of the contract by the seller, we should have no difficulty in bolding that such a departure in the matter of the length of the bars and such excess in weight of the steel, resulting in an additional cost over the contract price to the purchaser of more than $300, is not sanctioned by either of the rules referred to, and would have justified the latter in refusing to accept the shipment in question, had -such refusal been seasonably made on those grounds. But the case shows that the purchaser refused to receive the steel so shipped solely upon the grounds that the sellers’ solicitor was guilty of fraud in procuring the order, and that the defendant’s employe was without authority to give it, and therefore that there was no' sale or purchase. The objections now relied upon to defeat the action were confessedly not made until about a week before the actual trial of the case —long after the suit had been brought, and more than'a year after the steel had been shipped to the purchaser, during which time the respective parties were disputing by telegraph and letter over the fact of the alleged sale and the alleged fraud and lack of authority on the part of their respective employés. We think the objections now relied upon were made altogether too late.' It is quite true that mere silence at a time when there is no occasion to speak is neither a waiver nor evidence from which a waiver may be inferred — especially when unaccompanied by any act calculated to mislead the other party. But surely a buyer of merchandise must cither accept or reject it when tendered by the seller, and is bound to do one thing or the other within a reasonable time. In the present instance the buyer made no objection within any reasonable time to the overweight of the steel nor to the length of the bars, but based its refusal to accept the shipment exclusively upon the grounds above stated, which grounds the jury found were without any foundation. In Railway Company v. McCarthy, 96 U. S. 258, 267 ( 24 L. Ed. 693 ), the Supreme Court said: *708 “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law. Gould v. Banks, 8 Wend. (N. Y.) 562 [ 24 Am. Dec. 90 ]; Holbrook v. White, 24 Wend. (N. Y.) 169 [ 35 Am. Dec. 607 ]; Everett v. Saltus, 15 Wend. (N. Y.) 474; Wright v. Reed, 3 Durnf. & E. 554; Duffy v. O’Donovan, 46 N. Y. 223 ; Winter v. Coit, 7 N. Y. 288 [ 57 Am. Dec. 522 ].” To the same effect, see Oakland Sugar Mill Co. v. Fred W. Wolf Co., 118 Fed. 239 , 55 C. C. A. 93 ; Davis & Rankin Bldg. & Mfg. Co. v. Dix (C. C.) 64 Fed. 406, 410, 411 ; Lorraine Mfg. Co. v. Oshinsky et al. (C. C.) 182 Fed. 407 ; Meincke v. Falk, 61 Wis. 623 , 21 N. W. 785 , 50 Am. Rep. 157 ; Zeimantaz v. Blake, 39 Wash. 6 , 80 Pac. 822 ; Peterson Bros. v. Mineral King Fruit Co., 140 Cal. 624 , 74 Pac. 162 ; Ginn et al. v. Clark Coal Co., 143 Mich. 84 , 106 N. W. 867 , 107 N. W. 904 ; Linger v. Wilson, 73 W. Va. 669 , 80 S. E. 1108 ; Sutton v. Risser, 104 Iowa, 631 , 74 N. W. 23 ; Ricketts v. Buckstaff, 64 Neb. 851 , 90 N. W. 915 ; Bundy v. Wells et al., 88 Neb. 554 , 130 N. W. 273 , Ann. Cas. 1912B, 900; 28 Am. & Eng. Encyc. of Law, 18, and cases there cited. The judgment is affirmed.