Cohen v. Frima Products Co., 12971.

• Decision Date: 10 April 1950
• Docket Number: No. 12971.,12971.
• Citation: Cohen v. Frima Products Co., 181 F.2d 324 (5th Cir. 1950)
• Parties: COHEN v. FRIMA PRODUCTS CO.
• Court: U.S. Court of Appeals — Fifth Circuit

181 F.2d 324 (1950)

COHEN v. FRIMA PRODUCTS CO.

No. 12971.

United States Court of Appeals Fifth Circuit.

April 10, 1950.

Daniel F. Pariser, Louie Bandel, T. A. Whiteside, all of Miami, Fla., for appellant.

Sam Silver, of Miami, Fla., for appellee.

Before HUTCHESON, Chief Judge, and WALLER and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

Appellant assigns error upon the judgment of the trial Court, sitting without a jury, entered in favor of the appellee. Appellee as the plaintiff, instituted suit against appellant as the defendant for the agreed price of 879 lugs of tomatoes purchased after inspection and supervision of the packing, and which were delivered to the defendant's agent in Havana, Cuba, and for which the said agent delivered to plaintiff a check in the amount of $3129.40 upon which payment was stopped. The answer was a denial of indebtedness, an admission of the purchase and delivery of the tomatoes, the delivery of the check and the stoppage of payment, which was justified for the reason that the tomatoes were infected with a disease known as late blight. The defendant plead that the tomatoes were expressly warranted by the plaintiff to have come from fields free from late blight, which fields had been inspected and were so known; that inspection at the time would not have revealed the existence of blight; that inspection of the fields would have revealed said fields to be infected, and that in the purchase the defendant's agent relied wholly and exclusively upon the said express warranty of plaintiff's agent. There was also plead a cross claim for freight charges and denial thereof, which are not now material. Upon the trial there was evidence as to the purchase, inspection, selection and delivery of the tomatoes so selected, the giving of the check in payment thereof, the appearance of blight in the tomatoes, discovered after shipment by the purchaser to Port Everglades, Florida, and with reference to steps taken by the purchaser to reship the tomatoes to New York which was effectuated by stating the seller as consignor and consignee, the consignee being later changed to the Cuban-American Fruit Company. The material question, however, relates to the question of the warranty. As to this, there was direct conflict in the evidence of the plaintiff and the defendant, the defendant's agent contending that he was experienced in the produce business and as well qualified as anybody else to pick good merchandise; that he was aware that there were blighted tomato fields in Cuba, and in making the purchase Friedman, plaintiff's agent, "had told him that the tomatoes were from fields guaranteed free from blight; that Friedman said he knew which...