103 P. 242 | Utah | 1909
This is an action to recover the purchase price of a car load of rice, which, it is alleged, respondent purchased from appellant. While respondent interposed a number of defenses and also set up a counterclaim, the only defense which was submitted to the jury by the trial court and upon which the verdict in favor of respondent is based is the one that the rice was not of the quality represented by appellant, and that, upon inspection of the rice by respondent, it refused to accept the same or any part thereof.
The material facts in brief are: That at the times alleged appellant was engaged in the business of preparing rice and selling it in wholesale quantities, its place of business being at Lake Charles, La., while respondent was engaged in business at Ogden, TJtah. Mr. Geoghegan represented appellant as its agent at Salt Lake City. In March, 1908, respondent placed a verbal order with Mr. Geoghegan as claimed by it for three hundred" sacks of unmilled rice containing one hundred pounds each at the agreed price of $4.37 1-2 per cwt., free on board ears at Lake Charles, La., and that the quality of the rice was to be in accordance with the specified sample agreed upon by the parties. The only difference between the claim made by respondent and Mr. Geoghegan is that, while respondent claims the order was for three hundred, Geoghegan claims it was for four hundred
Appellant asserts that in unloading the rice and removing the same to its warehouse respondent as a matter of law accepted it, and that the court erred in refusing appellant’s request to so instruct the jury. We are clearly of the opinion that the court did not err in refusing appellant’s request. It is agreed by both parties that respondent had the right of inspection before accepting the rice. And, in any event, in
From a careful inspection of the record we can discover no prejudicial error. The judgment, therefore, ought to be, and is accordingly affirmed, with costs to respondent.