57 Ind. App. 274 | Ind. Ct. App. | 1914
This controversy grew out of the shipment by appellee to appellant o.f two carloads of chinaware, and was begun by appellee filing in the court below a complaint in two paragraphs. It the first paragraph he charged appellant with being indebted to him in the sum of $3,242.57, for goods, wares and merchandise shipped to appellant at his special instance and request as per a bill of particulars filed with and made a part of such paragraph.
The second paragraph is predicated on a verbal contract for the same merchandise, and alleged in substance that such contract was made at Akron, Ohio, on May 9, 1908, and partly reduced to writing, a copy of which is filed with such paragraph as an exhibit; that the figures set out in such
Appellant filed an answer in five paragraphs, viz., (1) a denial; (2) payment; (3) a special answer in which he, in effect, admitted that a verbal contract was entered into between him and appellee, a part of which was reduced to writing and correctly set out as an exhibit with appellee’s second paragraph of complaint. It is then alleged in substance that where such exhibit names prices only and not quantity, the defendant was to receive and accept such goods shipped of that particular class as were satisfactory and in a salable condition; that appellant was engaged in selling ehinaware at wholesale and purchased such goods for resale; that plaintiff had knowledge of such fact; that after making the contract appellee shipped to appellant at Indianapolis two carloads of various kinds of ehinaware and merchandise; that it was impossible to assort and count such merchandise without unloading it; that said cars were unloaded by appellant and their contents taken to his place of business where such merchandise was assorted and counted; that appellant then found that large quantities of the goods invoiced were missing; that large quantities were in a defective, unsatisfactory and unsalable condition; that he immediately notified appellee of such facts and refused
“ (6) One of the contentions of the defendant in this case is that at the time he entered into the contract in question he did not examine and did not have opportunity to examine the property in question. If you should find such to be the fact, then defendant would be, under the law, entitled to inspect the property upon its receipt by him, but if you should find that he did have an opportunity to inspect the same at the time of the purchase it would be wholly immaterial as to whether he in fact inspected it or in fact knew its condition. Under the law if he had the opportunity to know, it js sufficient. ’ ’
“(7) If you should find from the evidence in this case that the plaintiff and defendant agreed upon the sale to the defendant by plaintiff of the merchandise described in the written part of the contract in question, and if you should find under the terms of the contract there was no agreement that any part of the property should be in satisfactory and salable condition, and if you should find that the plaintiff delivered the property at the place of delivery as named in the contract, and if you should find that the property was in existence at the time of the making of the contract and the defendant had the opportunity to examine the same, then you would be justified in rendering a verdict for the plaintiff, provided you should also find that no subsequent contract relating to the merchandise in question was entered into by the parties.”
As before indicated other instructions are objected to by' appellant and other errors alleged to have occurred at the trial are presented in its brief; but as a reversal of the judgment below must result from those which we have already considered, we therefore deem it unnecessary to consider or determine such questions. In all probability they will not arise on a second trial of the case, and hence their discussion would be of doubtful value to either party.
For the errors in giving the instructions indicated the judgment is reversed, with instructions to the trial court to grant a new trial.
Note. — Reported in 106 N. E. 885. As to when the rule of caveat emptor is inapplicable in respect of sales, see 90 Am. Dee. 426. As to the effect of a sale with particular description of kind or quality, see 85 L. R. A. (N. S.) 258. See, also, under (1) 3 Cyc. 348; (2) 35 Cyc. 410, 403; (3) 35 Cyc. 397, 601; C4) 35 Cyc. 601; (5) 31 Cyc. 1341; Agency 2 C. J. §223; (6) 38 Cyc. 1657; (7) 31 Cyc. 1338; Agency 2 C. J. §221; (8) 38 Cyc. 1644; (9) 22 Cyc. 1581.