50 Ind. App. 72 | Ind. Ct. App. | 1910
— This action was brought by appellee against appellant to recover the purchase price for certain hoops and staves. The complaint is in three paragraphs. The first two count on written contracts, and the third on a verbal contract. The contract, which is the basis of the first paragraph is as follows:
‘ ‘ This contract and agreement made this 13th day of January by and between the Seymour Slack Stave Company,, of Seymour, Indiana, a corporation of the state of Indiana, parties of the first part, and O. Gandy & Co. of Churubuseo, Indiana, parties of the second part witnesseth: That for and in consideration of One Dollar in paid by the parties of the second part, receipt of which is hereby acknowledged, the parties of the first part, agree to sell and ship to the order of the second part the following slack cooperage: 1,500,000 28f inch No. 1 elm staves, cut six staves to 2J inch in thickness at $7.50 per thousand. 1,000,000 28f inch No. 1 hardwood staves, cut from maple, beech and oak, five staves to 1$ inch thickness, at $7.00 per thousand. 1,000,000 30 inch No. 1 hardwood staves, cut from maple, beech and oak, five staves to If inch in thickness, at $7.00 per thousand. 3,000,000 28f inch No. 2-elm staves to contain all th$ meal grade staves, at $4.50 per thousand. 200,-000 28f inch No. 2 hardwood staves to contain all the meal grade staves, at $4.00 per thousand. 200,000 30 inch No. 2 hardwood staves, to contain all the meal grade staves, at $4.00 per thousand. The above stock is to be shipped on orders of the said second parties in about equal monthly amounts from March 1st 1904, to*74 March 1st 1905. Prices named are net cash in thirty days from date of invoice free on board cars at Seymour, Indiana. In witness whereof,” etc.
In the second paragraph it is averred that the contract sued on is in the possession of defendant, who refuses to produce the same or a eop3>r thereof, but “that the said contract calls for the sale by the plaintiff to the defendant on board of cars at Seymour, Indiana, of mill run elm staves at $6.75 per thousand, and hardwood staves at $6.25 per thousand, the same to be shipped on orders of the defendant as directed in said orders; that said orders were on printed forms of the defendant and stipulated that the stock ordered was to be loaded on cars by plaintiff and billed out in the name of O. Gand3>- & Co., as shippers, and without any posters or cards either inside or outside of said cars. ’ ’
In the third paragraph it is averred “the plaintiff and defendant entered into a verbal contract where the plaintiff was to sell to the defendant mill run staves at $6 per thousand, six foot hoops at $7.50 per thousand, mill run heading at five cents per set; and mill run heading at four and one-half cents per1 set; all to be delivered to the defendant on board of ears at Seymour, Indiana, upon the order of the plaintiff. ’ ’
Delivery of goods is averred, and no question is made as to the sufficiency of the pleadings. The answer is in three paragraphs, general denial, payment and a paragraph admitting the execution of the contracts sued on, and that the defendant, from time to time, sent written orders to the plaintiff for the shipment of carloads of staves to persons named in various parts of the United States; that all staves of the kind described in the contracts, made in the United States, are graded according to the standards adopted, by the National Slack Cooperage Manufacturers Association; that both parties were acquainted with the grades so established, and contracted with reference thereto, and in making said contracts b3r the use of the terms No. 1 and No. 2, and other
Appellant gave shipping directions for over thirty cars of staves, which were delivered at different times.
The court in the last cited case clearly differentiates its facts from those involved in the ease at bar, saying: “It was as if they had contracted with a farmer for 800 bushels of the yellow com to be raised on his farm in a certain town, or 800 bushels of the winter wheat to be raised on a particular lot, or the apples from the trees in his orchard.” The sale of 800 bushels of No. 1 yellow com or 800 bushels of No. 1 wheat would be an altogether different proposition. The vendee would be entitled to the commodity specified. The instruction, taken in connection with the evidence, required the jury to find on this issue for the appellee, even though the staves marked No. 1 by appellee at Seymour were, in fact, culls.
It took from the jury the question as to what the terms used in the contract meant, and gave a construction to those terms which was in direct conflict with competent evidence, much of it furnished by appellees.
The instruction was wrong, “fraud need not he proved by direct or positive evidence.” Wallace v. Matice (1889), 118 Ind. 59, 20 N. E. 497.
There are a number of other questions in this record, hut they may he eliminated at another trial, and are therefore not discussed.
Judgment reversed, and cause remanded with instructions to sustain appellant’s motion for a new trial.
Note. — Reported in 90 N. E. 915. See, also, under (1) 17 Cyc. 721; (2) 35 Cyc. 565; (3) 35 Cyc. 216; (4) 35 Cyc. 229; (5) 12 Cyc. 1084; (6) 12 Cyc. 1103; (7) 20 Cyc. 129. As to implied warranty of quality in contracts of sale, see 102 Am. St. 607.