Mr. Paul C. Wagner, of Philadelphia, Pa., for plaintiff in error.
Mr. Merrill E. Otis, of St. Joseph, Mo., for the United States.
Mr. Justice BUTLER delivered the opinion of the Court.
This action was brought under section 24, par. 20, of the Judicial Code (Comp. St. 991), to recover $7,581.95, alleged to be due upon [268 U.S. 186, 187] a contract between plaintiff and defendant. The court gave judgment in favor of defendant. Plaintiff took the case to the Circuit Court of Appeals on writ of error, but it should have been brought to this court. J. Homer Fritch, Inc., v. United States, 248 U.S. 458 , 39 S. Ct. 158; Campbell v. United States, 266 U.S. 368 , 45 S. Ct. 115. The case was transferred to this court under section 238a, Judicial Code (Act Sept. 14, 1922, c. 305, 42 Stat. 837 [Comp. St. Ann. Supp. 1923, 1215a]) (C. C. A. Pa.) 293 F. 386.
The facts admitted include the following: September 4, 1918, plaintiff made a contract with the post quartermaster, United States Marine Corps, Quantico, Va., acting under the direction of the Secretary of the Navy for and in behalf of the United States. By it, plaintiff agreed to furnish two flywheels according to certain drawings, each to be cast in halves 'in the rough.' Delivery was to be made by September 28, 1918, at Reading, Pa., for shipment to the De La Vergne Machine Company, New York City. The contract contained a provision that upon delivery, and as a condition precedent to their acceptance, the castings should be inspected and approved by defendant, and that any article not so approved would be rejected, and should be removed by plaintiff immediately after receipt of notification of such rejection. The court found facts as follows:
In its brief, defendant contends that the plaintiff was bound by the contract to weld checks disclosed by machining, and the plaintiff so construes the contract. The facts admitted and the concessions made by the parties may be considered with the findings of fact made by the district court. This is not inconsistent with the rule stated in Crocker v. United States, 240 U.S. 74, 78 , 36 S. Ct. 245, restricting our inquiry to a consideration of the case on the findings. See Ackerlind v. United States, 240 U.S. 531, 535 , 36 S. Ct. 438. The contract is to be construed and the rights of the parties are to be determined by the application of the same principles as if the contract were between individuals. Smoot's Case, 15 Wall. 36, 47; Amoskeag Manufacturing Company v. United States, 17 Wall. 592, 595; United States v. Smith, 91 U.S. 214 , 217.
As the castings for the smaller wheel were not made to conform to the contract by the welding of the checks for which it was rejected within a reasonable time, plaintiff is not entitled to recover on account of it.
The defendant failed within a reasonable time to inspect the castings for the larger wheel or to give notice of rejection. Plaintiff was not in default. It made delivery as agreed by shipping the castings to the company which was to do the machining. Plaintiff was not bound to have the machining done, and, as between it and defendant, that burden was on the latter. The extent of the checks could not be determined before the castings were machined. Defendant was bound by the contract to accept [268 U.S. 186, 189] or reject the castings within a reasonable time. It is well settled in the law of sales that receipt of goods will become an acceptance of them if the right of rejection is not exercised within a reasonable time. Foss- Schneider Brewing Co. v. Bullock, 59 F. 83, 89, 8 C. C. A. 14. Defendant must be held to have accepted the castings for the larger wheel.
Plaintiff is entitled to judgment for the contract price.