#### Fred M. Smith v. C. E. Ainsworth et al.

1. Vendor and Vendee—Power to Reject Goods.—It any act is done by the buyer which he would have no right to do, unless as owner of the goods, he can not subsequently reject the goods.

Assumpsit, for goods sold. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.

Heard in this court at the March term, 1896.

Affirmed.

Opinion filed April 27, 1896.

Johnson & Morrill, attorneys for appellant.

Paden & Gridley, attorneys for appellees.

Mr. Presiding Justice Gary

delivered the opinion of the Court.

These parties deal in fish: the appellant in Chicago, the appellees at Sault Ste. Marie, Michigan.

The matter in suit is shown by correspondence as follows —first, a letter:

> “ Sault Ste. Marie, Mich., May 16, 1892.

> F. M. Smith, Chicago.

> Dear Sir:—We would like to deal with you this season in fish and make the same arrangement that we have with our other customers. To have a standing order from our customers and when our prices are not satisfactory to notify us, and we can then accept the price or discontinue shipments. We deal with Sloan, Lewis & Lehrkind, Booth, and *158others in this way. We are now billing white fish at six cents, trout at five cents.

> Tours respectfully,

> Ainswobth & Ganley.”

Then another letter:

> “ Chicago, May 18, 1892.

> Ainsworth & Ganley, Sault Ste. Marie, Mich.

> Deab Sibs :—In reply to your esteemed favor of the 16th inst., I have all my arrangements made for fish for this season, and thank you for your offer, but don’t think I can do anything with your house this summer.

> Tours respectfully,

> F. M. Smith.”

Then a telegram:

> “May 19/1892.

> Dated Chicago, 111., 19.

> To Ainsworth & Ganley:

> Ship first boat, small car, largest white. Make price low as possible. See letter. Answer.

> F. M. Smith.”

Then another telegram:

> “May 20,1892.,

> To F. M. Smith & Co., Chicago, III., 8 Dearborn St.:

> Will ship you a car to-morrow, extra fine white, about three pounds.

> A. & G.”

Then a postal card:

> “ Chicago, May 20, 1892.

> Ainsworth & Ganley, Sault Ste. Marie, Mich.:

> Tour telegram received, notifying me of shipment of car white. Tou may ship another, if fish are good size, when the next boat leaves, and wire when you ship.

> Tours ‘respectfully,

> F. M. Smith.”

Then another letter:

> “Chicago, May 20, 1892.

> Ainsworth & Ganley, Sault Ste. Marie, Mich.:

> Deab Sibs : I wired you last night to ship me, on first boat, one car largest white, and make price as low as pos*159sible, and received your wire to-day, saying you would ship.

> It seems that there was a letter written to you a few days ago, in which the statement was made that I had my arrangements' made for fish this summer. This was an error and done without my knowledge. I shall probably buy a good quantity of fish from your house this season, if you can supply me regularly and prices are right, so keep me posted.

> Tours truly,

> F. M„ Smith.”

Then another telegram:

> “ May 23,1892.

> To F. M. Smith, 8 Dearborn St., Chicago.:

> Two cars fish on the Gould this morning.

> A. & G ”

Then another telegram:

> “ May 25,1892.

> Dated Chicago, 111., 25.

> To Ainsworth & Ganley:

> Ship no more fish till further orders.

> F. M. Smith.”

Then an invoice:

> “ Sahlt Ste. Marie, Michigan, May 23, 1892.

> F. M. Smith & Co.

> Bought of Ainsworth & Ganley.

> Wholesale Dealers in Fish.

> 1992 white, car 50 $119 52

> 1031 “ 61 86

> 243 extra large 14 58

> 448 trout 24 64

> 25 sturgeon 1 00

> 5 pickerel ■ 20

> 58 pike, car 121 2 90

> Return freight, 2 cars 6 00

> $230 70”

Then another letter:

> *160“ Chicago, May 25, 1892.

> Messrs. Ainsworth & Ganley, Sault Ste. Marie, Mich.

> Deart, Sirs : Tour two cars fish received this a. m., and what I have used of them so far are very nice and I am well pleased, but you are a little too high on price. The Buffalo Fish Co., of Buffalo, 27. Y., are selling and offering elegant white fish at 5£ cts. lb. f. o. b. Chicago, and I can buy all the trout I want at 5c. lb. here. This is the reason I wired you to-day to ship no more till further orders. If you can make prices to compete with others, I should like to place standing order with you. Please let me hear, from you.

> Yours truly,

> F. M. Smith.”

May 20, 1892, was Friday, and the “ Gould” should have sailed from the Sault the next morning, but was delayed, and did not sail until the next Monday morning; which is the explanation by the appellees why they sent two cars on her in accordance, as they believed, .with the wish of the appellant, expressed in his dispatch of May 20th. May 27, 1892, the appellant wrote a letter, attempting to withdraw what we hold to be an acceptance of the fish by his letter ©f May 25th.

Holding that attempt to withdraw ineffectual, cuts off all the defense that the appellant tried to make, and the judgment for the appellees is affirmed.

That the court would not allow the appellees the return freight they charged in the invoice, and but five cents a pound for trout, is no ground of complaint by the appellant.

The administration of the law is practical, not metaphysical. Affirmed.