Palmer Fruit Co. v. Palmer, 24219.

Decision Date02 January 1925
Docket NumberNo. 24219.,24219.
Citation161 Minn. 526,201 N.W. 537
PartiesPALMER FRUIT CO. v. PALMER et al.
CourtMinnesota Supreme Court

Appeal from District Court, Hennepin County; Frank E. Reed, Judge.

Action by the Palmer Fruit Company against George C. Palmer and George C. Palmer, Inc. From a judgment for plaintiff, defendant last named appeals. Affirmed.

L. W. Crawhall, of Minneapolis, for appellant.

Henderson, Wunderlich, Brandebury & Stiles, of Minneapolis, for respondent.

PER CURIAM.

An action to recover $500 paid in advance on the price of five carloads of potatoes. When the goods were tendered they were refused by plaintiff, the purchaser, for alleged defect of quality, his contention being that they were not up to grade in several particulars, among others that they were packed in old instead of new sacks. The decision below was for plaintiff, and the case having been dismissed as to George C. Palmer, individually, defendant George C. Palmer, Inc., appeals from the judgment. A former appeal was from the order denying its motion for a new trial. 197 N. W. 283. For lack of a settled case there was an affirmance. We pass the point now advanced that there is nothing now open to review and consider the case on its merits.

There is no occasion for going into either the facts or the law of the case. The evidence of deficient quality and a failure to come up to the contract grade justifies the findings for plaintiff. The certificates of inspection by a representative of the Department of Agriculture, when first offered in evidence, were objected to and the objection sustained. Later on, there was what amounted to a renewed offer, somewhat informal, and this time the certificates were received. There was no objection, and no exception was reserved to the ruling admitting the documents in evidence. Therefore the record does not permit the predication of error upon their admission.

The contention that appellant's offer, made after plaintiff's rejection of the goods, to "regrade" them amounted to a tender of performance of the contract within the time limit is without merit. If in fact the regrading could have been accomplished within the time remaining for performance, and we will assume that it could have been, the quantity tendered would have been very substantially less than that required by the contract. The elimination of blemished and decayed potatoes would have gone far beyond the extent permitted by the recognized "tolerance."

Order affirmed.

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2 cases
  • Eilola v. Oliver Iron Mining Co.
    • United States
    • Minnesota Supreme Court
    • October 22, 1937
    ...cannot be raised for the first time on motion for new trial or appeal. Dunnell, Minn. Dig. (2d Ed.) § 9728; Palmer Fruit Company v. Palmer, 161 Minn. 526, 201 N.W. 537; Bokelmann v. Bokelmann, 180 Minn. 100, 230 N.W. 478; State v. Padares, 187 Minn. 622, 246 N.W. 3. It is claimed that plain......
  • Palmer Fruit Company v. Palmer
    • United States
    • Minnesota Supreme Court
    • January 2, 1925

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