61 Ind. App. 524 | Ind. Ct. App. | 1916
Tbis is an action to recover a balance of $269.78 claimed to be due appellant for brass rails and foot rests sold to appellee. Tbe first paragraph of tbe answer is a general denial, tbe second a plea of payment. Tbe third is based
“Replying to your letter of the 22d will say that it is true we specified lock joint robe and foot rails, but these rails are not as good as you furnished the Apperson Bros. Automobile Co. There must be something different so far as tubing is concerned. The writer is not positive of the fact, but thinks the tubing is of a lighter gauge.”
It was admitted by appellant that the materials sold were not suitable for rails more than thirty-three inches long, and were not generally recommended when the rails were to be longer, and yet the evidence shows that appellant knew when this sale was made that the rails used by appellee in its ears and specified in the contract were more than thirty-three inches in length. The contract provided that all materials were to be A1 in all particulars. After discovering that the rails furnished were not suitable for appellee’s cars, a letter was written to appellant, of which the following is the material part:
“We must have better robe rails and foot rests, otherwise we will have to change the account. If you can not give us some in lock joint tubing, we will have to have seamless tubing as it is very evident to the writer that you are not using as heavy gauge materials as you have been in the past. We will thank you for an early explanation of the*528 matter. We are having a number of complaints from our customers, due to • the fact that tubing used is entirely too light for the purpose.”
Six days after the receipt of this letter appellant replied that it would figure upon using something other than a “lock-joint rail.” On the following day, appellee wrote another letter to appellant requesting a change of materials, but in the meantime appellant continued to furnish the same rails, and then wrote to appellee that it had filled the order unless additional rails were needed. The evidence shows that the last shipment was made five days after the letter was written to appellant notifying it that the rails furnished were not fitted for the use intended, and that other rails would have to be furnished. There is much other evidence from which it could be reasonably inferred that appellant was furnishing imperfect and unsuitable rails. The evidence also shows that an offer was made by appellee to return the defective rails then in its possession. Although there is some evidence produced by appellant in conflict with that produced by appellee, there is ample evidence to support the verdict.
The verdict is clearly right on the evidence and we find no reversible error. Lafayette, etc., R. Co. v. Adams (1866), 26 Ind. 76; Perry v. Makemson (1885), 103 Ind. 300, 2 N. E. 713. Judgment affirmed.
Note. — Reported in 112 N. E. 108. As to privilege of returning goods purchased as bar to claim for breach of warranty, see Ann. Cas. 1915 D 1159.