248 F. 665 | 9th Cir. | 1918
(after stating the facts as above).
“So that upon this issue, after considering all the evidence, if you find therefrom that the salmon received by the plaintiff was worthless and unfit for the purpose for which it was purchased, and was incapable of being used for human consumption, it will be year duty to return a verdict for the plaintiff for the amount paid for this salmon, with interest to the present time."
The difficulty in the way of giving that instruction was that a considerable portion of the goods so received by the plaintiff was fit for use, and was salable, and was sold for $3,940, of which the plaintiff received and retained at least the net amount of $2,590, all of which was retained by the plaintiff and was riot tendered to the defendant, nor was any offer made to rescind the contract. It is not contended that the contract was void at its inception, or that the defendant had knowledge when the goods were shipped that any particular portion of them was unfit for consumption; the evidence being that “do-over salmon was a doubtful commodity,” and as plaintiff’s own agent testified, one who buys do-over salmon “expects to find a certain percentage bad.” It was owing to this fact that such salmon had been
We think the requested instruction was properly denied, for the reason that the evidence in the case was not such as to justify a verdict for the plaintiff on the ground of estoppel. Estoppel in this case must rest upon the theory that the defendant made representations either with fraudulent intent, or so carelessly and negligently as to amount to constructive fraud, and that the plaintiff must have relied thereon to its injury. The only testimony as to the manner in which the samples were selected from the pack of 1912 is that of the defendant’s general superintendent, who said that he took only one can from a case, indiscriminately, and did not attempt to pick out any particular cans for sample purposes, and that the samples from external appearance and weight were the same as the others. There is no evidence that the samples were submitted, by the defendant, or received by the plaintiff, as funishing evidence to the plaintiff of the quality and condition of the 5,000 cases so purchased. The plaintiff’s own evidence is that the samples were obtained for issuance to its customers for purposes of resale, that the defendant was asked to send samples for that purpose, and that 2 cases were sent at the plaintiff’s expense. And although the plaintiff’s manager of its canned goods department testified that he opened not less than a dozen tins out of the 144 tins so sent, and that the condition of those tins was very satisfactory, that fact was not of itself sufficient to justify the jury in reaching the conclusion that the samples sent were not fair samples of
“We expected to find some bad cans of salmon in do-over grades in all lots, and in otlier lots we find very few, sometimes more. It is impossible to state the average number of bad cans that are found in a shipment of do-over salmon. I have seen it run as high as 60 per cent.”
“The relief from such mistakes, if any are made, is to be sought in applications to the trial court for a new trial”
—and citing Mills v. Smith, 8 Wall. 32, 19 L. Ed. 346, where the court said:.
“This court have no right to order a new trial because they may believe that the jury may have erred in their verdict on the facts. If the court below have given proper instructions on the questions of law, and submitted the facts to the jury, there is no further remedy in this court for any supposed mistake of the jury.”
We find no error. The judgment is affirmed.