WINCHESTER & PARTRIDGE MANUFACTURING COMPANY
v.
FUNGE
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Winchester & Partridge Manufacturing Company and Funge disputed payment terms involving a contract to pay a debt with wagons, and the Supreme Court held that upon receipt of the wagons, the defendant was required to inspect and could reject them if defective, and that accepting and selling them constituted partial payment, while the sale price of those wagons was irrelevant to the claim unless proceeds exceeded the debt owed. The Court reversed the lower court's judgment and directed further proceedings consistent with this interpretation.
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Mr. Justice Blatcheord delivered the opinion of the court.
We are of opinion that, on the terms of the receipt which expressed the contract between the parties, the appellant or its agents were required to determine, on receiving the wagons, whether they were in good condition and merchantable order, and were at liberty to reject them if not meeting those conditions ; that.the receiving the 21 and proceeding to sell them was an acceptance of the 21 in payment jiro tanto of the claim; that the contract for the payment in wagons was unfulfilled, as to the i wagons not delivered; and that the price for which the 19 wagons were sold, and the selling value of the 2 not sold, have no bearing on the case under the first count, unless there be a surplus of the proceeds of sale, to be refunded to the appellee under the contract.
As to the second count, it sets forth a good cause of action. That count does not involve on its face any question as to the contract evidenced by the receipt embodied in the first count.
The judgment of the supreme court is reversed, with direction to it to reverse the judgment of the district court, and to take or direct such further proceedings in the suit as may he according to la/w and in conformity with this opwvioni
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