Omaha Electric Light & Power Company v. Union Fuel Company

• Decision Date: 15 February 1911
• Docket Number: 16,305
• Citation: 129 N.W. 989,88 Neb. 423
• Parties: OMAHA ELECTRIC LIGHT & POWER COMPANY, APPELLEE, v. UNION FUEL COMPANY, APPELLANT
• Court: Nebraska Supreme Court

129 N.W. 989

88 Neb. 423

OMAHA ELECTRIC LIGHT & POWER COMPANY, APPELLEE, v. UNION FUEL COMPANY, APPELLANT

No. 16,305

Supreme Court of Nebraska

February 15, 1911

APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Reversed.

REVERSED.

Smyth Smith & Schall, for appellant.

Weaver & Giller, contra.

REESE C. J. FAWCETT, J., not sitting.

OPINION

REESE, C. J.

This action was instituted in the district court for Douglas county. In the petition the corporate capacity of both plaintiff and defendant is averred, and it is alleged, in substance, that between the 28th day of December, 1906, and the 22d day of February, 1907, the defendant offered to sell plaintiff 14 cars of Cherokee slack or steam coal for the sum of $ 1,583.49, and falsely and fraudulently represented to plaintiff that the coal so offered was Cherokee slack or steam coal; that plaintiff relied upon said representation, and was thereby induced to and did purchase said coal of defendant and paid therefor the sum of $ 1,583.49; that the coal so furnished and sold to plaintiff was not the coal contracted to be sold and delivered to plaintiff, but was slack or steam coal of an inferior and cheaper quality, and not worth the said sum of $ 1,583.49, nor in excess of the sum of $ 933.49; that the false representations were made by defendant with intent to cheat and defraud plaintiff, and by reason thereof plaintiff has sustained damages in the sum of $ 660, for which, with interest, judgment is demanded.

The defendant, for answer, admits the corporate capacity of the parties; pleads a general denial of unadmitted averments; admits the sale of coal substantially as alleged; alleges that upon the delivery of the coal to plaintiff it was examined and inspected by plaintiff at and before its delivery, was accepted, approved and used by plaintiff, and after it was consumed was paid for with full knowledge of the kind and quality thereof. Judgment dismissing plaintiff's action is demanded.

For reply, plaintiff denies that the coal mentioned in its petition, sold to plaintiff by defendant, was inspected and examined at or before delivery; admits that the kind and quality of coal was approved and accepted by plaintiff; but avers that the approval and acceptance was based solely on, and was by reason of, the false and fraudulent representations of defendant, as alleged in the petition. The knowledge of the kind and quality of the coal when paid for is denied, and it is alleged that the true kind and quality of the coal was not discovered by plaintiff until after it was consumed and paid for, when plaintiff demanded of defendant a return of the excess of money so paid. The cause was tried to a jury, and a verdict finding in favor of plaintiff in the sum of $ 388.15 was returned, upon which a judgment was rendered. Defendant appeals.

It is shown by the evidence that plaintiff ordered and received from defendant a number of cars of slack coal during the months of November and December, 1906, and January and February, 1907, the exact number is not exactly stated, but perhaps from 40 to 50 cars, which were consumed immediately upon delivery, all of which was paid for during the fore part of the month succeeding its receipt by plaintiff. Some time after the full payment for the coal plaintiff claimed that defendant had practiced a fraud upon it in the delivery of 14 of the car-loads by a misrepresentation of the quality or kind of coal delivered, in representing it to be Cherokee slack, a superior quality, when in fact it was Iowa and Missouri slack of an inferior grade and value, and this suit is to recover the damages alleged to have been thereby sustained. It is shown that the coal was delivered in car-load lots at the power-house of plaintiff, received by its employees, and often immediately unloaded and consumed in the furnaces. It sufficiently appears that the Cherokee slack coal is mined in a certain district or locality in southeastern Kansas, known as the Cherokee district, that the steam producing quality of that coal is superior to that of either the Iowa or Missouri product and was worth more in the Omaha market than those grades, and that by a visual inspection the difference can be detected by one accustomed to the handling of those coals. It appears from the evidence that, on the first of the month succeeding the deliveries of the previous month, the bills for the price were presented for payment, and payment was made by the 10th of the month in which the bills were presented. This was the custom of the parties. In perhaps every instance the coal was consumed before payment, and in most cases before the presentation of the bills, for it is shown that on some occasions the coal would be conveyed into the furnaces and consumed as fast as unloaded from the cars. It is insisted by plaintiff that there was a fraudulent representation as to the quality of the coal contained in the 14 cars, that it relied upon the statements made, was damaged, and that the alleged fraud was not discovered until after its...