William H. (William Homer) Spencer.

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there was an excusing of the seller by the buyer. When the buyer
declines to receive the property, or repudiates the contract before the
time of delivery, a tender would be unnecessary, because useless.
Although the buyer might have changed his mind if the goods had
been delivered at the time and place fixed in the contract, yet it does
not lie in his mouth to say so, having previously declined and thereby
put his adversary off guard. He would not be allowed to play fast
and loose with the contract in that way. So when he absents himself
from the place of delivery, making a tender futile, the other party is
absolved from making the tender. The office of the tender is to give
the other contracting party an actual chance to comply with the
contract. It would be as vain to tender cattle at the agreed place
and time, when the purchaser had purposely absented himself and
had no representative there to receive them, as to tender them when
he had previously repudiated the contract, and declared that he would
not accept them. As appellant was absent from the place of delivery
on every day when a tender of the cattle could have been made to
him under the contract, and had no one there to represent him in
receiving and paying for the cattle, appellee was not bound to go to
the trouble -and expense of doing a thing that could serve no useful
or sensible purpose, and drive the cattle down there, to be again
driven back.

Judgment affirmed.

QUESTIONS

1. Suppose that the action in this case had been for the purchase price of
the cattle, what would have been the decision of the court ?

2. S agrees to sell B ascertained goods, lying in B's warehouse. When
does title to the goods pass ? Is S under a duty to deliver the goods ?
When and where must delivery or tender of delivery be made?

3. The goods in the foregoing case are in the possession of X, and this
fact was known to B. When does title pass? Is S under a duty to
deliver? When and where must he make a delivery?

4. The goods are in X's warehouse. S delivered to B a warehouse receipt
indorsed in blank. S sues B for the price of the goods. B contends
that he is not liable because S never delivered the goods to him.
What decision ?

5. S sells B ascertained goods stored in S's warehouse. Before B came
after the goods, the warehouse and all its contents burn. S sues B for
the price of the goods. B contends that there was no delivery. What
decision ?



142 LAW AND BUSINESS

6. B orders goods from S. S separates them from a larger mass of goods
of the same kind and ships them to S. The goods are lost in transit.
S sues B for the price of the goods. What decision ?

7. S sells ascertained goods to B and agrees to deliver them to B at the
latter's place of business on the day following. That night the goods
are accidentally destroyed by fire. S sues B for the price of the goods.
What decision ?

8. At B's order, S ships goods to B. While in transit the goods deteriorated
in value due to improper packing on the part of S. S sues B for the
price of the goods. What decision ?

9. In what different * senses is the word delivery used? What kind of
delivery is necessary for passing title to property ? What kind of delivery
is required by the statute of frauds ? What kind of delivery is required
for the performance of the contract ?



BARTON v. KANE

17 Wisconsin Reports 37 '(1863)

Action to recover the contract price of cigars and tobacco alleged
to have been sold and delivered to the defendant by the plaintiff.
The plaintiff having introduced his evidence, the defendant moved
for a nonsuit on the ground that more goods were shown to have
been sent by the plaintiff than the quantity specified in the agree-
ment of sale, while there was no proof of their having been accepted
by the defendant. There was a verdict for the plaintiff. Judgment
was entered on the verdict from which the defendant appealed.

DIXON, C. J. The motion for judgment of nonsuit should have
been granted. The cigars forwarded exceeded the quantity ordered.
The order was for 5,000, but the plaintiff sent 5,625. This was no
compliance with the order, and imposed no obligation on the defend-
ant, without showing an acceptance in fact by him after the cigars were
received, the burden of which was upon the plaintiff. To constitute
a delivery to the carrier a delivery to the consignee, so as to pass the
title, and make the consignee liable for goods sold and delivered, the
goods must correspond in quantity as well as quality with those
named in the order. Bruce v. Pearson, 3 Johns., 534, and Thompson
v. Downer, 2 Hill, 137, are clear upon this question, and though the
latter was reversed in the court of errors (6 Hill, 208), the main
point of reversal cannot arise here. There can be no pretense that
the 625 extra cigars were sent out of an abundance of caution, and



MARKET TRANSACTIONS 143

to insure a scriptural compliance with the order. They were sent
to fill up the case, and the defendant was charged with their price.
To entitle himself to recover under these circumstances, the plaintiff
should have shown that the defendant actually received and accepted
the cigars sent, upon the terms indicated in the plaintiff's letter noti-_
fying him of the consignment.

Judgment reversed and a new trial awarded.

QUESTIONS

1. If the defendant in this case had accepted all the cigars which the plain-
tiff sent, what would have been the decision of the court ?

2. Suppose that the plaintiff had sent only about 4,500 cigars, what would
have been the defendant's rights when they arrived ?

3. Suppose that the plaintiff had shipped 5,000 cigars but that they were
inferior in quality to the cigars ordered by the defendant, what would
have been the defendant's rights when they arrived ?

4. S sells B 5,000 barrels of oil to be delivered in bulk in cars, with the
understanding that B is to pump the oil from the cars. S ships cars
containing 6,000 barrels of oil. B refuses to accept any of it. S sues B
for the price of 5,000 barrels. What decision ?

5. S contracts with B to sell and deliver flour of a certain grade. S ships
a very inferior grade of flour. What are B's rights when it arrives ?

6. In the foregoing question, the flour is lost in transit. Upon whom does
the loss fall ?

7. S contracts to sell and deliver 500 tons of hay to B during the months
of September and October, to be paid for when all the hay is delivered.
S delivers 200 tons in September, but delivers none thereafter. B
accepts and uses the 200 tons, thinking that the balance will be forth-
coming. S sues B for the price of 200 tons. What decision ?

8. S contracts to sell to B 5,000 tons of iron rails to be delivered at about
the rate of 1,000 tons a month. In the first month S ships 500 tons; in
the second month he ships 800 tons. When B learns of the amounts of
these two shipments, he notifies S that the contract is at an end. S sues
B for breach of the contract. What decision ?

9. In the last question it is agreed that B shall pay for each instalment
as it is delivered. S ships about 1,000 tons in the first month, which B
fails to pay for on its arrival. Thereupon S notifies B that he will ship
no more rails. B sues S for breach of the contract. What decision?



144 LAW AND BUSINESS

CREAM CITY GLASS CO. v. FRIEDLANDER

84 Wisconsin Reports 53 (1893)

WINSLOW, J. We shall consider but one other question upon this
appeal, and that is the question of the effect upon the rights of the
parties of the use of six tierces of the soda ash by the plaintiff in
January or February following the sale, for the purpose of testing its
fitness for the manufacture of glass. Assuming that the evidence is
sufficient to establish an implied warranty that the soda ash in ques-
tion was of a quality reasonably fit to be used in the manufacture
of glass, the question is, could the plaintiff after having decided that
the material was wholly unfit, and notified the defendant of its
decision and its rejection of the material, proceed to use three-
quarters of a ton of the material in making a practical test, and still
insist on its right of rejection. It seems clear that the plaintiff was
entitled to a reasonable time after actual receipt of the material to
exercise the right of rejection in case the goods did not conform to
the contract. Benjamin, Sales (6th ed.), section 703. If this fact
could only be ascertained by a practical test, the plaintiff also had the
right within such reasonable time, to make such a practical test, using
only so much of the material as was reasonably necessary for the pur-
pose, without thereby losing the right of rejection. Benjamin, Sales
(6th ed.), section 896; Philadelphia Whiting Company v. Detroit White
Lead Works, 58 Mich. 29. But this test is plainly for the purpose only
of enabling the purchaser to decide whether the material conforms to
the contract. If the fact can be determined by inspection alone, the
test is not necessary, and the use of the material, therefore, clearly
unjustifiable. Now, in this case, the plaintiff's officers determined at
once and upon inspection alone, that the material was unfit for their
purposes, and so notified the defendant and rejected the entire lot.
They did not claim to need any test. They took their position defi-
nitely. After that act they could not deal with the property in any
way inconsistent with the rejection, if they proposed to insist upon
their right to reject. Churchill v. Price, 44 Wis. 540. They must do
no act which they would have no right to do unless they were owners of
the goods. Benjamin, Sales (6th ed.), section 703. Under these rules
it is evident the.plaintiff had no right to use up a quantity of the mate-
rial several weeks after the rejection. By the rejection it became
defendant's property, if such rejection was rightful. Plaintiff had no
right to use any part of it. It is claimed that the use was simply for



MARKET TRANSACTIONS 145

the purpose of providing evidence of unfitness for the purposes of the
trial of the case, but one has no right to use his opponent's property
for the purpose of making evidence. The act was. an unmistakable act
of ownership, and entirely inconsistent with the claim that the material
had been rejected, and was owned by the defendant. It follows that
the judgment must be reversed.

Judgment reversed.

QUESTIONS

1. What did the court decide in this case that the plaintiff by making
the practical test became purchaser of the soda ash or that the test was
a conversion of the defendant's property ?

2. S sells B a consignment of syrup. When delivery is tendered, B wishes
to open one of the receptacles to inspect the syrup. S denies him the
right to do so. B refuses to accept the delivery. S sues B for the price
of the syrup. What decision ?

3. S sells and ships B syrup. Upon arrival, B makes an inspection and
finds that it does not conform to the sample by which it was sold. What
are B's rights under the circumstances?

4. B, a candy manufacturer, buys 500 pounds of sugar from S. B uses
25 pounds in making a batch of candy. Finding that the sugar is not
of the quality it was warranted to be, he ships back to S 475 pounds.
What are S's rights against B ?

5. S sells goods to B and ships them C.O.D. by the X Company. B refuses
to pay for them because the carrier will not permit him to inspect the
goods before payment. The goods are destroyed by fire that night
while still in the possession of the carrier. S sues B for the price of
the goods. What decision ?

6. What are the rights of the unpaid seller of personal property against
the buyer ?



CHAPTER III

MARKET PRACTICES

i. Practices Prejudicial to a Competitor

a) Practices Injurious to a Competitor's Business Organization

WALKER v. CRONIN
107 Massachusetts Reports 555 (1871)

Tort, brought in the Superior Court. The defendant demurred.
The Superior Court sustained the demurrer, and the plaintiff appealed.

WELLS, J. The declaration, in its first count, alleges that the
defendant did, "unlawfully and without justifiable cause, molest,
obstruct, and hinder the plaintiffs from carrying on" their business
of manufacture and sale of boots and shoes, "with the unlawful pur-
pose of preventing the plaintiffs from carrying on their said business,
and wilfully persuaded and induced a large number of persons who
were in the employment of the plaintiffs," and others, "who were
about to enter into" their employment, "to leave and abandon the
employment of the plaintiffs, without their consent and against their
will"; whereby the plaintiffs lost the services of said persons, and
the profits and advantages they would otherwise have made and
received therefrom, and were put to large expenses to procure other
suitable workmen, and suffered losses in their said business.

This sets forth sufficiently (i) intentional and wilful acts (2)
calculated to cause damage to the plaintiffs in their lawful business,
(3) done with the unlawful purpose to cause such damage and loss,
without right or justifiable cause on the part of the defendant (which
constitutes malice), and (4) actual damage and loss resulting.

Everyone has an equal right to employ workmen in his business
or service, and if, by the exercise of this right in such manner as he
may see fit, persons are induced to leave their employment elsewhere,
no wrong is done to him whose employment they leave, unless a
contract exists by which such other person has a legal right to the
further continuance of their services. If such a contract exists, one
who knowingly and intentionally procures it to be violated may be

146



MARKET PRACTICES 147

held liable for the wrong; although he did it for the purpose of pro-
moting his own business.

Everyone has a right to enjoy the fruits and advantages of his
own enterprise, industry, skill, and credit. He has no right to be
protected against competition; but he has a right to be free from
malicious and wanton interference, disturbance, or annoyance. If dis-
turbance or loss come as a result of competition, or the exercise of like
rights by others, it is damnum absque injuria, unless some superior
right by contract or otherwise is interfered with. But if it come from
the merely wanton or malicious acts of others, without the justifica-
tion of competition or the service of any interest or lawful purpose,
it then stands upon a different footing and falls within the principle
of the authorities first referred to.

The second and third counts recite contracts of the plaintiffs with
their workmen for the performance of certain work in the manufacture
of boots and shoes; and allege that the defendant, well knowing
thereof, with the unlawful purpose of hindering and preventing the
plaintiffs from carrying on their business, induced said persons to
refuse and neglect to perform their contracts, whereby the plaintiffs
suffered great damage in their business.

It is a familiar and well established doctrine of the law upon the
relation of master and servant, that one who entices away a servant,
or induces him to leave his master, may be held liable in damages
therefor, provided there exists a valid contract for continued service,
known to the defendant. It has sometimes been supposed that this
doctrine sprang from the English statute of laborers, and was confined
to menial service. But we are satisfied that it is founded upon the
legal right derived from the contract and not merely upon the rela-
tion of master and servant, and that it applies to all contracts of
employment, if not to contracts of every description.

Upon careful consideration of the authorities, as well as of the
principles involved, we are of opinion that a legal cause of action is
sufficiently stated in each of the three counts of the declaration.

Demurrer overruled.

QUESTIONS

i. "So far as appears from the reported cases, inducing a competitor's
employee to leave his service and take employment with a rival has
been little resorted to as a competitive method. A few cases have
arisen, both in this country and in England, where in an effort to cripple



148 LAW AND BUSINESS

a rival his employees have been induced to leave his service, but such
instances are rare outside of labor unions." Why do you suppose
this is so ?

2. Does it appear in this case why the defendant induced the plaintiff's
employees to leave him ?

3. Did defendant induce plaintiff's employees to leave because of labor
difficulties ? Was it because he needed employees ? Or was it a case
of wilful interference ? What difference would it make in any event ?

4. Would not the plaintiff have had a remedy against his employees for
breaking their contracts? Why give him an additional remedy
against D ?

5. In this class of cases what is meant by the allegation "that the defend-
ant maliciously " caused the plaintiff's employees to break their contracts
of employment ?

6. X is under a contract of employment with P. X goes to D in search
of new employment. D, knowing that X has a contract with P, offers
him employment. P sues D. What decision ?

7. D, a piano manufacturer, invited the workmen of P, a rival manufac-
turer, to dinner. After causing them to become intoxicated, he induced
them to sign contracts of employment with him. The workmen were
not employed by P for a determinate period, but worked by the piece.
P sues D for damages. What decision ?

COHEN v. KUSCHKE AND COMPANY
83 Law Times Reports N.S. 102 (1900)

This was a claim by the plaintiff to recover 38, a sum paid by
the defendants Kuschke and Company to the defendant Koenig, being
a sum paid by way of secret commission to Koenig, who was engaged as
the plaintiff's buyer. It was not disputed at the trial that the sum
of 38 was paid by Kuschke and Company to Koenig, but the question
in dispute was whether it was a sum of money paid in pursuance of a
bargain made by Koenig for the purchase from Kuschke and Company
of a parcel of thirty- two bales of 'Sumatra tobacco, or was a mere
gratuity paid to Koenig as a Christmas box or as a present.

The defendant contended that it was a mere gratuity and that it
had no relation to the contract by Koenig for the purchase of the
thirty-two bales.

The learned judge left to the jury the following question, whether
a term of the bargain was a promise to pay Koenig $d. in the pound
by way of secret commission and whether payment was made in
pursuance of such promise. They answered that in the affirmative,



MARKET PRACTICES 149

and he thereupon entered judgment for the plaintiff against the
defendant Koenig.

BRUCE, J. The question now arises, is the plaintiff entitled to
judgment against the defendant Kuschke and Company? It was
contended by Mr. Bankes on behalf of the defendants, Kuschke and
Company that, as there was no evidence that the price of the thirty-
two bales had been enhanced by the amount of the commission,
Kuschke and Company are not liable. But I cannot agree with that
contention. It is clear that Kuschke and Company knew perfectly
well that Koenig was the plaintiff's agent and was buying the thirty-
two bales for him, and it is quite clear from the evidence of the
defendants that the money paid to Koenig was paid to him intending
that he should have the benefit of it. Indeed, as I have said, the case
of Kuschke and Company is that the 38 was a present to Koenig.
If the money paid was not a mere gratuity, the defendants Kuschke
and Company must have paid it as a secret commission, and in those
circumstances, I think it matters not whether a different price would
have been obtained had there been no bargain for a commission. In
this sale it was a term, it entered into the bargain, that a sum of
money which was part of the apparent or pretended price of the
goods was to be paid over to Koenig, for his own use. That money
was in law not Koenig's money, but it was the money of the plaintiff.
And if the defendants Kuschke and Company paid over to Koenig,
with knowledge of the circumstances, money which was the plaintiff's
money, intending that Koenig should keep it for his own use and that
the plaintiff should be kept in ignorance of the payment, I think they
are liable to the plaintiff for the amount. The plaintiff cannot, of
course, recover the money twice over, but he is entitled to recover
it against either or both of the defendants, and he is entitled to
judgment against Kuschke and Company for 38 and costs.

Judgment accordingly.

QUESTIONS

1. The court says in the principal case that the money paid to the agent
was the plaintiff's money. If so, how did the agent hold it ? If so,
why does the court permit the plaintiff to recover a judgment against
the defendant for the sum of money ?

2. X authorizes and directs A to sell certain stock and promises him a
commission. Y, knowing that A is acting for X, buys the stock and
promises him a commission, (a) A is suing X for his commission.
(b) A is suing Y for his commission. What decision in each case ?



150 LAW AND BUSINESS

3. X authorizes A to sell goods for him and promises him a commission.
Y authorizes A to buy goods for him and promises a commission. A
sells goods to Y on behalf of X. Each pays A a commission, ignorant
that A was acting in a double capacity. Each sues A for return of his
commission. What decision in each case ?

4. In the foregoing case Y knew but X did not know that A was acting
for both. Each sues A for return of the commission paid. What
decision in each case ?

5. X authorizes A to sell goods for him. Y, ignorant of the foregoing fact,
authorizes A to buy goods of similar kind for him. On behalf of X,
A enters into a contract to sell goods to Y. Later X and Y discover
that A was acting for both. What are the respective rights of X and
Y under the contract between them ?

6. Suppose in the foregoing case that Y knew but X did not know that
A was acting for both. What would be X's rights under the contract ?
Y's rights under the contract ?

7. X authorizes A to find a purchaser for certain goods and promises him
a commission. Y authorizes A to find a seller of the same kind of
goods and promises him a commission. A brings X and Y together
and they make their contract of sale. A sues each for commission
promised. What decision in each case ?

8. "A common method of competition is the giving of secret commissions
to another's employees for the purpose of securing a preferential treat-
ment in the distribution of the employer's patronage. Notwithstanding
the fact that the courts have permitted the principal to recover the
amount of the commissions so received, and to repudiate contracts
made under such circumstances, it has been considered necessary in
several states in this country and in other English-speaking countries
further to discourage the practice by making it a criminal offense."
Why have the common law rules failed to check this practice ?



V) Direct Attacks on a Competitor's Trade Relations

RICE v. MANLEY
66 New York Reports 82 (1876)

Appeal from order of the General Term of the Supreme Court in
the Fourth Judicial Department reversing a judgment in favor of
plaintiffs, entered upon the report of a referee.

EARL, J. The plaintiffs had made an agreement with one
Stebbins to purchase from him a large quantity of cheese, to be
delivered at a future day, at Cattaraugus station, Cattaraugus county.
There had been no compliance with the statute of frauds so as to



MARKET PRACTICES 151

make the agreement binding upon either party, but both parties
would have performed it but for the fraud of the defendant. The
defendant knowing of the agreement, for the fraudulent purpose of
defeating its performance by Stebbins, of depriving the plaintiffs of
the benefit thereof, and of himself obtaining the cheese, caused a
telegraphic dispatch to be sent to Stebbins, signed by the name of
E. Rice, which he meant Stebbins should understand to be the name
of one of the plaintiffs, to the effect that he could not sell the cheese
and plaintiffs did not care for it. He took the dispatch from the tele-
graph office and carried it to Stebbins, and by this fraud induced
Stebbins to sell and deliver the cheese to him before the day of delivery
to the plaintiffs arrived. The referee held that defendant was liable to
the plaintiffs for the damages sustained by them in consequence of the
fraud; but the General Term reversed the judgment, holding, upon
the authority of the case of Dung v. Parker (52 N.Y. 494), that the
plaintiffs could recover no damage, because the agreement for the
sale of the cheese to plaintiffs, by Stebbins, was void by the statute



Online LibraryWilliam H. (William Homer) SpencerLaw and business → online text (page 16 of 70)