159 N.E. 589 | Ohio Ct. App. | 1927
The Globe Register Company, a corporation engaged in the manufacture and sale of autographic registers, manifolding machines, and other devices, brought an action against the Johnston-Albershart Company, claiming, in substance, that it purchased from the defendant company a certain quantity of paper stock under an implied warranty that it was reasonably fit for plaintiff's purposes.
Plaintiff avers that it relied upon defendant's skill and judgment, as a wholesale dealer in paper, to select paper reasonably fit for the purposes for which it was to be used. It is further averred that plaintiff discovered imperfections, which rendered the paper unfit for the required purposes, but that plaintiff had paid for a certain portion of the paper prior to this discovery. Defendant's attention was called to the matter, and it assured plaintiff that a satisfactory adjustment would be made. Defendant then called for payment for the balance, stating that payment in full by plaintiff would not affect any adjustments or allowances to which plaintiff *137 might be found entitled, and, upon this assurance, plaintiff paid the balance of the purchase price.
Plaintiff avers that it continued to use some of the paper, but found it so defective as to be practically useless for its purposes.
Plaintiff claims to have offered to return the unused paper at the original invoice price, and to accept that price in cash in full settlement.
Plaintiff further claims that defendant admitted the paper was not merchantable, and agreed to order cars and return it to the mill; that defendant did remove said paper, and requested plaintiff to bill and charge defendant at the price per pound originally charged the plaintiff. Plaintiff then charged the defendant with the original invoice price of the paper, in the amount of $11,459.20, which sum then became due the plaintiff. Plaintiff later purchased some paper, and defendant then paid plaintiff $8,438.71 on account, leaving a balance due of $2,493.10, for which, with interest, judgment is asked.
The defendant, by a second amended answer, admits the purchase of the paper by plaintiff, admits it knew the purpose for which the paper was to be used, and that plaintiff made complaint as to part of said paper, admits it paid plaintiff $8,438.71 and sold plaintiff some additional paper, but it claims that this was a part of the paper originally purchased by plaintiff, and denied all other allegations. Defendant further alleges that the defects of which plaintiff complained could be corrected by examination and rewinding of the rolls; that defendant did not manufacture the paper, nor warrant it either expressly or impliedly, and had no *138 knowledge of defects except from statements of plaintiff; that it was impracticable to inspect the paper unless it was returned to the mill, and that plaintiff was to receive back all paper, when rewound, which was in proper condition; that defendant agreed to endeavor to obtain an allowance or rebate from the mill for the paper which could not be put in proper condition; that the paper was sent to the mill, rewound, and about 24,000 pounds of it was then in proper condition, and plaintiff was notified that it was held subject to plaintiff's order; that plaintiff then demanded a reduction in price, which was allowed; that some of the paper was delivered to plaintiff; that the balance of the paper was held and is still held at the mill, subject to plaintiff's order, amounting at the reduced price to $2,493.10, but that plaintiff has refused and now refuses to accept the same; and that defendant tendered said paper to plaintiff and also a check for $8,050.85, in settlement of all controversies, whereupon plaintiff demanded $8,438.71, which defendant then sent by check to plaintiff in full satisfaction and compromise of all claims, and tendered the said rolls of paper.
Defendant avers that, by the acceptance and cashing of the check by plaintiff, all claims were compromised and settled.
Plaintiff, by reply, admits the receipt of the check and denies the new allegations of the answer.
Upon trial, the jury returned a verdict for the plaintiff in the amount claimed, with interest, and judgment was entered thereon.
Plaintiff in error, defendant below, now brings these proceedings to reverse that judgment. *139
The assignments of error stressed are the following:
(1) That the verdict and judgment are manifestly against the weight of the evidence.
(2) That the court erred in overruling defendant's motions for a directed verdict.
(3) The court erred in the admission of evidence.
(4) Error in the general charge.
One of the main points in controversy at the trial was what agreement was made by the parties at the time the paper was returned to the mill by the defendants; the consideration for such agreement being the claimed admission of liability for breach of warranty.
Mr. Johnston testified that he did not know anything about the requirements of plaintiff. The second amended answer filed herein admits "that the defendant knew the purpose for which said paper was to be used."
The evidence bears out the contention that the true condition of the paper as to cuts, calendar marks, pasted ends, and other imperfections, could not be determined except by a rewinding of the rolls.
The question as to warranty and as to the agreement reached as to the return of the paper and reimbursement therefor were all controverted, and from the conflicting evidence the jury found for the plaintiff. From our examination of the record we do not find that the verdict and judgment are manifestly against the weight of the evidence.
Defendant, now plaintiff in error, contends that the acceptance and use by plaintiff of the check for *140 $8,438.71 was an accord and satisfaction as a matter of law, and that the court was therefore in error in its refusal to direct a verdict for defendant. Many authorities are cited showing cases wherein the facts show a settlement in full and constitute an accord and satisfaction.
The facts herein as to the settlement were in dispute, and the question of accord and satisfaction was properly left to the determination of the jury.
Certain letters were introduced in evidence, being the correspondence between the parties after the receipt by plaintiff of the check for $8,438.71, contained in defendant's letter of January 16, 1922.
It is contended by plaintiff in error that this correspondence was improperly admitted.
These letters do have a bearing on the question of whether or not there was a final settlement between the parties, as claimed by the defendant. The correspondence includes the letters of both plaintiff and defendant, and tends to bear out plaintiff's contention that there was no accord and satisfaction, but that the controversy was unsettled.
Several errors are claimed in the general charge on the subject of settlement, burden of proof, and implied warranty, and also that the court failed to charge that plaintiff's actions might show that there was an acceptance of the settlement.
Parts of the charge are selected, which, standing alone, would be objectionable. But, taking the charge as a whole we consider that the court properly stated the issues and the law applicable thereto. The charge was quite lengthy, and covered fully the points involved. In summing up, the court did not restate all the matters previously referred *141
to. The court gave the law, reading from the General Code as to warranty, and also charged fully on burden of proof and settlement, but when again referring to these subjects did not repeat all the prior instructions. We consider that the charge, taken as a whole, fully advised the jurors of the issues and the law applicable thereto. As was stated by Judge Johnson in the case of Fairchild v. Lake Shore Electric Ry. Co.,
"Overnice verbal distinctions, which close analysis may discover, should not be resorted to by reviewing courts in the examination of the work of trial courts, when it is manifest that men of ordinary intelligence would not be misled in the performance of their duties as jurors."
We consider that this case was fairly presented to the jury, and we find no errors prejudicial to plaintiff in error, which would warrant a reversal.
Judgment affirmed.
HAMILTON, P.J., and CUSHING, J., concur. *142
