92 W. Va. 655 | W. Va. | 1923
Plaintiff sued in assumpsit to recover $906.10, with interest from July 17, 1919, being the purchase price of a carload of bananas, with initial icing charge. Defendants pleaded non-assumpsit and filed notice of recoupment. The jury returned a verdict in favor of plaintiff for $600-; plaintiff made a motion to^set aside the verdict and award it a new trial, claiming it was contrary to the law and the evidence, and assigns various other errors. The motion was overruled and judgment was entered on the verdict. Plaintiff obtained a writ of error.
To dispose of the assignments of error it is necessary to consider the evidence. The record shows that the plaintiff was engaged in raising and importing tropical fruits, with offices in New Orleans, and plantations near LaCeiba, Honduras, Central America, between which points it operated a steam-ship line for carrying fruits to New Orleans. From that point plaintiff marketed its fruits in the United States. The bananas were assorted according to grade, loaded in refrigerator cars and these cars were placed in trains of about fifty cars each. After loading, the shipper placed about three tons of ice in the bunkers of each car to preserve the fruit. This initial icing is charged to the consignee by the shipper. Thereafter, in case additional icing is necessary, it is done by the carrier, and the icing charge is added to the freight bill, and paid by the consignee.
Plaintiff sold its bananas in car-load lots. When sold be
Defendants filed notice of recoupment, in effect claiming that the bananas were to be of sound, merchantable and grass-green condition at New Orleans, when shipment was made, in order that they might be in sound, merchantable condition on their arrival in Charleston, and that they were at time of shipment to be properly iced and to continue to be iced until they reached Charleston; that they were not sound, merchantable and grass-green nor properly iced when shipped, and were not kept properly iced until they arrived in Charleston, but that when they arrived they were wholly unfit for defendants’ business and hence defendants were damaged to the amount of plaintiff’s claim. Defendants had a right to defend on this ground, hence plaintiff has no right to complain on that score. As we view the record, defendants wholly failed to make good their claim but that is no reason for denying them the right to make their defense; plaintiff’s objection to defendants’ notice of recoupment was properly overruled.
At the trial, after the evidence had been introduced, plaintiff asked for an instruction directing the jury to find for plaintiff for the full purchase price, ■ including the initial icing charge. This instruction was refused. ¥e think it should have been given, and that the verdict rendered is. clearly contrary to the law and the evidence. It is clearly shown, by competent evidence, that the bananas were properly loaded at New Orleans, the car was properly iced, and the bananas were of the quality and grade called for by the contract. If the purchase was made before shipment began, plaintiff performed its part of the contract. If the purchase was made “rolling”, that is, while the car was in transit, it was made before the car reached Memphis, for it was diverted to defendants at that point, and in that case, plaintiff .performed its contract at that point. The evidence shows that when it was diverted the bananas were still grass-green, of sound merchantable quality, and the car in which they were carried was properly iced and ventilated. No examination of
But' defendants contend in effect that under the contract, plaintiff’s duty required it to see that the bananas were delivered to them at their place of business in green, sound merchantable condition. We do not so interpret the contract.
In English v. Spokane Com. Co., 57 Fed. 451, 6 C. C. A. 416, defendant in Spokane telegraphed plaintiffs in Omaha: “Wire price ear strictly fresh eggs, new cases.” Plaintiff replied: “Car fresh eggs, 16, Track here for immediate acceptance.” Defendant answered: “If eggs strictly fresh, 14 cents. Answer if accepted.” .Plaintiffs replied: “Offer
It follows from what we have said that plaintiff’s instruction No. 5 should have been given. It would have told the jury in substance that if they believed that defendants ordered a car-load of good green eight-hand bananas from plaintiff at $3.80 per hundred weight to be delivered f. o. b. Bailway Company at New Orleans, buyer’s risk in transit, and that bananas of the kind and quality ordered were delivered-by plaintiff to the railway company, in New Orleans, consigned to defendants, and that if they were properly packed in the car by plaintiff and the car was properly iced and ventilated at the time of delivery to the railway, then the title to the bananas passed to defendants upon delivery to the' railway company, and they should find for plaintiff. Plaintiff’s instruction No. 6, as amended, in different form, covered the case, whether the sale was made before loading at New Orleans or while "rolling”. These instructions substantially covered the case and were properly drawn and should have been given. It is therefore unnecessary to refer to the other instructions offered by plaintiff. Some of them are not strictly applicable to the facts.
We have already referred to the fact that defendants claimed they took charge of the bananas on July 14th and the next day sold them under instructions of the Federal Food Administrator. They claimed they never voluntarily accepted them. If the bananas delivered to the carrier complied with plaintiff’s contract, then the defendants were in duty bound to accept them. The title was in the defendants.
There are other assignments of error, but it is unnecessary to comment upon them. Unless a different showing is made upon a new trial it will be the duty of the court to direct the jury to find for the plaintiff the amount in suit.
For the foregoing reasons, the judgment will be reversed, the verdict set aside, and the ease remanded for a new trial.
Reversed and remanded.