American Fruit Product Co. v. Davenport Vinegar & Pickling Works
Decision Date | 27 November 1915 |
Docket Number | 30430 |
Citation | 154 N.W. 1031,172 Iowa 683 |
Parties | AMERICAN FRUIT PRODUCT CO., Appellee, v. DAVENPORT VINEGAR & PICKLING WORKS, Appellant |
Court | Iowa Supreme Court |
Appeal from Scott District Court.--HON. A. J. HOUSE, Judge.
THE plaintiff brought this action to recover the purchase price of certain carloads of vinegar, sold to the defendant. There was a verdict and judgment for plaintiff, and defendant appeals.
Reversed.
Sharon & Higgins, for appellant.
Lane & Waterman, for appellee.
Plaintiff 's petition alleges, first, a sale of 80 barrels of vinegar to the defendant, pursuant to a written contract that said sale was made on or about December 19, 1911, but that the shipment was invoiced as of January, 1912; and that, of the agreed price of said vinegar, there remains due and unpaid the sum of $ 200. In a second count, plaintiff alleges the further sale to defendant of 5 other carloads of vinegar of 80 barrels each, pursuant to the terms of a written contract, and that, of the agreed purchase price, there is due and unpaid the sum of $ 2,258.34. In a third count, the defendant is charged with the alleged agreed price of a quantity of "Holly Brand Juice", sold to the defendant on its written order, to the amount of $ 239.07, which is also due and unpaid. In an amendment filed pending the trial, plaintiff further alleges that the shipments of vinegar for which payment is demanded were received, accepted and retained by defendant. The defendant admits the contracts mentioned in the petition and the sales made to it thereunder, as alleged by the plaintiff, but denies that the goods delivered were of the guaranteed quality. It pleads no payments upon the purchases in addition to those credited in the petition. It pleads, however, a counterclaim for damages, based upon an alleged warranty of the goods purchased and a breach thereof.
It is claimed by appellee in argument that defendant does not, in fact, allege any warranty of the goods, and at most alleges a failure of the goods to comply with plaintiff's representation or description. For reasons stated in a later paragraph of this opinion, the objection cannot be sustained. The plaintiff denied the counterclaim; and, upon the issues thus joined, there was a verdict and judgment for the plaintiff, and defendant appeals.
I. The written contract, declared upon in the second count, is attached as an exhibit to the petition, and is in the following form:
The contract mentioned in the first count is not set out; but the evidence tends to show that it was identical with the one above quoted, as to terms and conditions of sale. It appears that the contract mentioned in the second count was entered into before the delivery of all the vinegar under the first contract for which payment is claimed in the case. Before any deliveries were made under the second contract, and after the delivery of the carload mentioned in the first count of the petition, the defendant notified plaintiff that the vinegar was not of the specified quality, and that chemical tests had shown it to be below the legal standard, and defendant would not undertake to put the product on the market. The correspondence growing out of this complaint was voluminous. Plaintiff having expressed its willingness to deliver vinegar which, when reduced by a given proportion of water, would conform to the requirements of the Iowa pure food statute, defendant forwarded its duplicate copies of the written contracts, asking that such stipulation be inserted therein. To that request, plaintiff responded as follows:
Other vinegar being ordered after the date of the supplemental contract, defendant again complained that chemical tests showed it to be substantially identical with prior shipments, which had been found unsatisfactory. Still other shipments were found satisfactory, and so reported to plaintiff. Later defendant again complained that two carloads shipped in September, 1912, were materially below the agreed standard, and said, After setting out in detail what it claimed to be a chemical analysis of the vinegar, defendant further said:
In November, 1912, plaintiff shipped defendant still another carload, upon receipt of which, defendant notified plaintiff by telegraph that the vinegar was . Plaintiff replied, asking a sample of the vinegar which was sent. On the next day, defendant wrote plaintiff, confirming its telegram, and saying, among other things:
Later, plaintiff acknowledged the defective character of this shipment, and asked that the car be reshipped to its address, and this was done. Later, plaintiff addressed a letter to defendant, as follows:
To continue reading
Request your trial-
Nyhus v. Travel Management Corporation
...§ 28:2-725 (1967). 20 Florey v. Meeker, 194 Or. 257, 240 P.2d 1177, 1188 (1952). See also American Fruit Product Co. v. Davenport V & P Works, 172 Iowa 683, 154 N.W. 1031, 1035 (1915); Friday v. Regent Improvement Co., 330 Pa. 481, 199 A. 914, 916 (1938). 21 Hawkins v. United States, 96 U.S......
-
Am. Fruit Prod. Co. v. Vinegar
... 172 Iowa 683 154 N.W. 1031 AMERICAN FRUIT PRODUCT CO. v. DAVENPORT VINEGAR & PICKLING WORKS ... ...