81 Ind. App. 208 | Ind. Ct. App. | 1923
September 9, 1920, the appellee gave to an agent of appellant its written order for, of “offer to purchase”, 310 barrels of a certain designated brand of flour manufactured by the appellant, the flour to be shipped to appellee at Washington, Indiana, upon shipping directions to be given by appellee, after November 1, and before December 30, 1920. The said order was given upon a printed form supplied by the appellant. In said order, or offer, it was provided that the failure or refusal of the buyer to furnish shipping directions, as provided in said order, should give the seller the right to cancel said contract and recover from buyer certain specified damages. Across the face of said order was written the following: — “Guaranteed to equal any Standard Baker’s Patent on the market.” This order was, by appellant’s agent duly transmitted by mail to the appellant at its office in Minneapolis, Minn., where it arrived on September 11,1920, on which day said offer was accepted by appellant and notice of such acceptance duly mailed to the appellee. The flour
The complaint was in one paragraph; the appellee answered by general denial, and also by an affirmative paragraph, the sufficiency of which is not questioned on this appeal. The cause was submitted to the court for trial and resulted in a finding and judgment in favor of the appellee. The only error assigned is the action of the court in overruling the motion for a new trial.
The alleged errors assigned in the motion for a new trial were: (a) admitting incompetent evidence; (b) excluding competent evidence; (c) that the decision of the court was not sustained by sufficient evidence; and (d) that said decision was contrary to law. A statement of some of the undisputed facts shown by the record, and a consideration of the affirmative answer of the appellee, will be helpful in considering the questions thus presented.
The appellee, as its justification for not ordering out the said flour within the time limited in said contract, in its said paragraph of answer, alleged that said flour “was not equal to any standard baker’s patent flour on the market,” and that, on discovery of this fact, it refused to give shipping directions.
The record shows, without dispute, that appellant had been manufacturing the brand of flour in question and known as “Gold Mine”, since 1902; that said flour was a “registered brand” and had been registered for more than ten years; that the appel
This case then presents the situation of a registered brand of flour which had been manufactured for a number of years, being sold under a distinct representation (guaranty) as to its quality.
In 24 R. C. L. 290, §572, it is said: — “If a contract of sale is executory, as in the case of the sale of unidentified articles, there is no obligation on the part of the buyer to accept delivery of goods which do not, as to quality, conform to the requirements of the contract, even though the contract contains an express warranty of quality.” Many authorities are cited as supporting the rule there announced.
In this case, under the issues, it must be considered as established by the finding of the trial judge that the brand of flour in question, “Gold Mine”, was not “the equal of any standard baker’s patent flour on the market”, — that said brand of flour was not of the quality required by the contract. In Pope v. Allis (1885), 115 U. S. 363, 29 L. Ed. 393, it was said: “It was established by the verdict of the jury that the iron shipped was not of the quality required by the contract. Under these circumstances the contention of the plaintiff in error is, that the defendant in error, although the iron
In this case, the appellee purchased a car load of flour of a certain designated and registered brand, “Gold Mine,” which the appellant had been manufacturing' for a number of years; it bought it under a representation, not that the particular lot of flour which it was then ordering would be, as to its quality, of a certain standard, viz.: equal to any standard baker’s patent flour on the market, but, that the brand of flour, “Gold Mine,” was equal to any standard brand of patent baker’s flour then on the market; the representation was concerning the quality of the said brand of flour, a quantity of which brand of flour was then and there being ordered by the appellee.
As hereinbefore stated, the appellee had bought a quantity of this brand of flour in August and received shipment of same in November; now, for the first time, so far as this record discloses, there was an opportunity offered to it and to its customers to test the quality of this brand of flour; they tested it, weighed it in the balance of the baker’s oven
The appellant also complains because certain testimony offered by it was excluded from the jury, as the excluded testimony related only to the measure of damages which appellant was entitled to recover, if any, it clearly appears by this record that it was not harmed by such exclusion.
The decision of the court is abundantly sustained by the evidence and is not contrary to law.
The judgment is affirmed.