Globe Liquor Co. v. San Roman, No. 9146.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | SPARKS, MAJOR, and MINTON, Circuit |
| Citation | 160 F.2d 800 |
| Parties | GLOBE LIQUOR CO., Inc., v. SAN ROMAN et al. |
| Docket Number | No. 9146. |
| Decision Date | 14 April 1947 |
160 F.2d 800 (1947)
GLOBE LIQUOR CO., Inc.,
v.
SAN ROMAN et al.
No. 9146.
Circuit Court of Appeals, Seventh Circuit.
February 14, 1947.
Rehearing Denied April 14, 1947.
Nat M. Kahn, of Chicago, Ill., for appellants.
Ben W. Heineman, of Chicago, Ill. (Joseph D. Block and Swiren Heineman & Antonow, all of Chicago, Ill., of counsel), for appellee.
Before SPARKS, MAJOR, and MINTON, Circuit Judges.
MINTON, Circuit Judge.
The plaintiff-appellee, a corporation of Delaware, sued the defendants-appellants, a partnership whose members reside in and are citizens of Illinois, for breach of an express warranty. It is alleged in the complaint that the plaintiff agreed to purchase from the defendants and the defendants agreed to sell and deliver to the plaintiff 750 cases of Mexican tequila, described as "Mariachi Tequila Gold, in good merchantable condition, fit for human consumption," and that the defendants failed and refused to deliver the tequila to the plaintiff "in good merchantable condition fit for human consumption in violation of their agreement so to do."
The plaintiff exhibited with its complaint and introduced in evidence an order for the tequila made out on an improvised order blank in the handwriting of the plaintiff's vice president. Some letters and memoranda that had passed between the parties were also exhibited with the complaint and introduced in evidence. No written definitive contract was entered into between the parties covering the transaction.
The defendants in their amended answer alleged that at the time the order was taken by their salesman, the plaintiff was informed by him that the order was subject to acceptance and confirmation by the shipper in Mexico, and that the defendants were not to be responsible for the quality of the liquor but such responsibility was to be that of the shipper in Mexico.
The case was tried before a jury, and at the conclusion of all the evidence each
As we have pointed out, the plaintiff alleged and relied upon an express warranty by the defendants. There is not one word or syllable in the written exhibits or in the oral testimony that the defendants ever agreed to deliver tequila "in good merchantable condition, fit for human consumption." In this state of total failure to prove an express warranty as alleged in the complaint, the court directed a verdict for the plaintiff. This was error.
Not only was it error to grant the motion of the plaintiff for a directed verdict. It also was error to refuse to grant the motion of the defendants for a directed verdict, because there was a total failure of proof on the question of express warranty, upon which the plaintiff had relied. The court was right in one respect. It was right in directing a verdict, but it directed the verdict for the wrong party. In this situation, we are at liberty to dispose of the case here. West Virginia Pulp & Paper Co. v. Cone, 4 Cir., 153 F.2d 576, 581, 582; United States v. Halliday, 4 Cir., 116 F.2d 812, 815, 816; Berry v. United States, 2 Cir., 111 F.2d 615; Conway v. O'Brien, 2 Cir., 111 F.2d 611, 613.
The judgment of the District Court is reversed, and the cause is...
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Mobile Mechanical Contractors Ass'n v. Carlough, Civ. A. No. 74-409-H.
...of Civil Procedure, provides that a complaint may be treated as amended to conform to the evidence. See Globe Liquor Co. v. San Roman, 160 F.2d 800 (7th Cir. 1947); Fifth Avenue Bank of New York v. Hammond Realty Co., 130 F.2d 993 (7th Cir. 1942). The substance of the claim asserted by MMCA......
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Johnson v. New York Co, No. 40
...must be proved. In Globe the plaintiff secured a verdict on the basis of an express warranty in a sale; the Court of Appeals, 7 Cir., 160 F.2d 800, held that he had failed in this and directed the entry of a judgment for the seller, even though on a new trial, which alone was what the selle......
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Shapiro v. Yellow Cab Co., Civil Action No. 5303.
...the pleadings; Venuto v. Robinson, 3 Cir., 118 F.2d 679; Scott v. B. & O. R. Co., 3 Cir., 151 F.2d 61; Globe Liquor Co. v. Roman, 7 Cir., 160 F.2d 800; Stafford v. R. T. Co., D.C.W.D.Pa., 70 F.Supp. 555; Nester v. Western Union Telegraph Co., D.C.S.D.Cal., 25 F.Supp. 478; 1 Moore's Federal ......
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United States v. Corrado, No. 12337.
...of defendant that his false statement was immaterial, but when we follow the reasoning of the court in Del Guercio v. Pupko, supra 160 F.2d 800, to its logical conclusion, we must hold that it was very material. True, the Del Guercio case was an application for citizenship where the burden ......
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Mobile Mechanical Contractors Ass'n v. Carlough, Civ. A. No. 74-409-H.
...of Civil Procedure, provides that a complaint may be treated as amended to conform to the evidence. See Globe Liquor Co. v. San Roman, 160 F.2d 800 (7th Cir. 1947); Fifth Avenue Bank of New York v. Hammond Realty Co., 130 F.2d 993 (7th Cir. 1942). The substance of the claim asserted by MMCA......
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Johnson v. New York Co, No. 40
...must be proved. In Globe the plaintiff secured a verdict on the basis of an express warranty in a sale; the Court of Appeals, 7 Cir., 160 F.2d 800, held that he had failed in this and directed the entry of a judgment for the seller, even though on a new trial, which alone was what the selle......
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Shapiro v. Yellow Cab Co., Civil Action No. 5303.
...the pleadings; Venuto v. Robinson, 3 Cir., 118 F.2d 679; Scott v. B. & O. R. Co., 3 Cir., 151 F.2d 61; Globe Liquor Co. v. Roman, 7 Cir., 160 F.2d 800; Stafford v. R. T. Co., D.C.W.D.Pa., 70 F.Supp. 555; Nester v. Western Union Telegraph Co., D.C.S.D.Cal., 25 F.Supp. 478; 1 Moore's Federal ......
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United States v. Corrado, No. 12337.
...of defendant that his false statement was immaterial, but when we follow the reasoning of the court in Del Guercio v. Pupko, supra 160 F.2d 800, to its logical conclusion, we must hold that it was very material. True, the Del Guercio case was an application for citizenship where the burden ......