226 F. 646 | 6th Cir. | 1915
On May 31, 1911, plaintiff contracted in writing for the sale to the defendant of 55 secondhand coal barges, at an aggregate price of $53,632, less a discount of 5 per cent.; 33 of the barges were then empty ánd ready for delivery; the others were loaded. For the 33 empty barges notes were to be at once taken at 90, 180, and 270 days. The remaining 22 barges were to be turned over as soon as empty “at their present location,” notes to be given as in the case of the 33 mentioned. The first 32 barges were settled for June 1, 1911. June 29, 1911, 6 more barges were similarly settled for. July 31st settlement was made in the case of 6 more, September 5th for the same number, and on November 13, 1911, for the remaining 5. The notes were all paid, except the 5 (aggregating about $10,-000) which are the subject of this suit; part being original notes, and others being renewals. Defendant pleaded that the purchase was made upon plaintiff’s representation “that the barges were in good and navigable condition and that they were not out of repair”; whereas they were, as alleged, materially out of repair, some of them in such bad' condition that they could not be loaded, and others requiring much expense in putting them in navigable condition. By cross-petition defendant sought to recover damages on account of barges already paid for in ignorance of their true condition. The case was tried in April, 1913. At the conclusion of defendant’s testimony verdict was directed for plaintiff for the face of the unpaid notes, with interest.
Attached to the contract was a list of the barges, showing the material (whether pine or hemlock), the age and number of each barge, and its price. The stated ages ranged, in the case of hemlock, from 3 years and 1 month to 5 years, and in the case of pine from 4 years and 1 month to 9 years and 7 months. The schedule showed 43 of the barges to be pine and 12 hemlock. The prices ranged from $552 to $1,145. There was testimony tending to show an oral representation by plaintiff, relied upon by” defendant, that the barges were seaworthy and in good condition; that in the opinion of witnesses, based solely upon the appearance of the barges, all were considerably older than stated in the sales list, such excessive age being variously estimated at from) 1 to 4 years; that 16 of the barges were hemlock; that the life of a pine barge is from 10 to 15 years, and of hemlock from 6 to 9 years; that some of the timbers in 21 or 22 of the barges weré found, at one time or another, to- be decayed to a greater or less extent, due, in the opinion of witnesses, to old age, and not usage; that several barges had become nonfioatable, and had been beached, before the trial;. that the bottoms were torn from 3 to- 4 of the barges while being towed, because the bottom timbers had been insufficiently spiked.
As the barges reached defendant’s mines at Marmet from time' to time, they were all examined, in accordance with its regular practice, by its employ'd in charge of the inspection and repair of barges and their distribution to the mines, and report made to the company’s office (apparently at Marmet) whether or not they were in condition to be loafed. If repairs were necessary, they were made, and each month the repair hook, showing amount expended for repairs by barge number, was turned into the office at Marmet, and report of such repairs made to the vice president at the Cincinnati - office. These repairs, previous to June 1, 1912, amounted to $2,444.15, and after that date to $2,181.61. All the barges were so examined as stated above between August and December, 1911. Defendant’s vice president personally had general knowledge of the alleged bad condition of the barges, in March, 1912 (and that some of them had rotten timbers), hut claimed not 1o have had complete knowledge as to all these barges until June, 1912. Plaintiff sued July 8th. Until after this suit was begun, defendant purposely refrained from complaining to plaintiff about the barges. After December, 1911, and thus after the last of the barges had been delivered and had reached the mines and been so examined, and after the alleged unseawortliy condition of some of the barges had been discovered, defendant made payments or renewals of notes belonging to each of the several series representing the several deliveries, and like payments or renewals as to no Les in each of such series were made on or after March 1, 1912. Its failure to pay in full was due only to lack of funds.
The District Judge based his direction of verdict upon the proposition that defendant had unreasonably delayed complaining of the alleged bread) of warranty, having in view its opportunity to inspect and its ac.ual inspection in part, and the fact that the alleged rotten condition of timbers could have been readily discovered by boring, being of opinion that testimony that such boring would be injurious was plainly unreasonable. We do not find it necessary to determine whether defendant was bound to test the timbers, by boring or otherwise, before acceptance, or whether as to all the barges the case may be disposed of solely upon the ground adopted by the District Judge, for we think affirmance of the action taken below is, in any event, compelled in view of the further considerations to which we shall call attention.
For the purpose of our disposition of the case, and in view of the fact that provision for inspection was not carried into the subsequent written contract of sale, we shall assume (without so deciding) that under section 8395 (1) of the Code (quoted in the margin
The alleged fact that there were more hemlock barges than represented is immaterial under the pleadings, as no warranty in this regard is alleged, perhaps because of defendant’s testimony that the dif-ferenre was readily apparent. This question was properly withdrawn by the court before final direction of verdict.
We have considered the case of each separate barge so far as shown by the record. As we understand the situation, defendant is precluded from recovery, as respects each of the barges in question, through the application of one or another of the principles we have declared applicable. It follows that, in our opinion, the court did not err in directing verdict for plaintiff. It need scarcely be said that defendant was not legally prejudiced by the granting of plaintiff’s motion to direct verdict, after the court had once declined to- do so-.
The judgment of the District Court is affirmed, with costs.
“When the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.”
See, in this connection, Gen. Code Ohio, §§ 8428, 8429, 8449; Williston on Sales,’ § 249, p. 35; Benj. on Sales (5th Eng. Ed.) 626-628; Marx v. Locomobile Co., 82 Misc. Rep. 468, 144 N. Y. Supp. 937, 938; Nelson v. Silver, 160 App. Div. 445, 145 N. Y. Supp. 124, 127.