Pottlitzer v. Wesson

• Decision Date: 21 December 1893
• Docket Number: 795
• Citation: 35 N.E. 1030,8 Ind.App. 472
• Parties: POTTLITZER ET AL. v. WESSON ET AL
• Court: Indiana Appellate Court

35 N.E. 1030

8 Ind.App. 472

POTTLITZER ET AL. v. WESSON ET AL

No. 795

Court of Appeals of Indiana

December 21, 1893

From the Allen Superior Court.

Judgment affirmed, at costs of appellants.

W. P Breen, for appellants.

C. H Worden and J. Morris, Jr., for appellees.

OPINION

DAVIS, C. J.

The evidence tends to establish the following state of facts:

Appellants are partners, doing business in Fort Wayne and Lafayette, Indiana, under the name of Pottlitzer Brothers; and appellees are partners, doing business in New Orleans, Louisiana, under the name of Hoadley & Co.

On the 13th of May, 1891, Leo Pottlitzer, one of appellants, gave appellees a written order for bananas, as follows: "Ship Pottlitzer Bros., Fort Wayne, and Pottlitzer Bros., Lafayette, car each of straight run bananas out of steamer 'Hewes,' at $ 1.50 per bunch."

May 14, 1891, appellees shipped a car of bananas to appellants at Fort Wayne, which arrived the 17th or 18th of May. Appellants, on inspecting the bananas, wired appellees May 18 and 19, that they would not accept the bananas as straight run, to which appellees at once replied by telegrams and by letter that the bananas were straight run and that they must accept them as such. Appellants, after this, took the bananas into their possession and sold them.

On the 8th of June, 1892, appellants sent appellees their check for $ 550.70, and refused to pay the balance of the $ 825, claimed by appellees as due for the bananas, and this suit was brought.

On trial by jury verdict was returned for appellees in sum of $ 274.30.

In answer to interrogatories, the jury found that the bananas were straight run.

Judgment was rendered on the verdict against appellants.

The errors assigned are:

1. That the court erred in sustaining the demurrer to sixth paragraph of answer.

2. That the court erred in overruling the demurrer to the second paragraph of reply.

3. That the court erred in overruling appellant's motion for judgment on the answers of the jury to the interrogatories, notwithstanding the general verdict.

4. That the court erred in overruling appellant's motion for a new trial.

It is first urged, by counsel for appellants, that the court erred in sustaining the demurrer to the sixth paragraph of the answer. Conceding, without deciding, that this paragraph contained facts sufficient to constitute a defense to the cause of action, the error, if any, was harmless, for the reason that all the evidence which would have been admissible thereunder was admissible under the fifth paragraph of the answer.

The rule is that it is harmless error to sustain a demurrer to a good paragraph of answer, if there is a paragraph remaining under which the same facts may be proven. Wickwire v. Town of Angola, 4 Ind.App. 253, 30 N.E. 917; Landwerlen v. Wheeler, 106 Ind. 523, 5 N.E. 888.

The next question presented arises on the ruling of the court below on the demurrer to the second paragraph of the reply.

In the fourth paragraph of answer it was alleged that appellees received the $ 550.70 in settlement for the car of bananas in suit. In reply appellees alleged that said sum was not accepted by them in full satisfaction of the amount due, but that it was received in part payment only, of which fact appellants had due notice.

In our opinion the facts therein stated constituted a good reply to the answer. The same evidence would, so far as we can see, have been admissible under the general denial, but in any event there was no error in pleading the facts specially.

Counsel for appellants next contend that the court erred in refusing to sustain their motion for judgment on the special interrogatories answered by the jury, for the reason that these interrogatories disclosed the tender to, and receipt by, appellees of the check of appellants for the bananas sued for. The jury answered that the bananas were "straight run"; that there were 550 bunches; that appellants paid appellees by check $ 550.70; that appellants were claiming that 340 bunches were inferior to straight run and were disputing their liability for the residue of the $ 825, and that the check so sent by appellants was not accepted by appellees in full payment.

The answers to the interrogatories are not so irreconcilably inconsistent with the general verdict as to entitle appellants to judgment thereon. It is well settled that special findings of fact override a general verdict only when so inconsistent that both can not stand. Evansville, etc., R. R. Co. v. Weikle, 6 Ind.App. 340, 33 N.E. 639.

On the last error assigned, two propositions of law are presented in different forms growing out of the rulings of the court below at the trial.

1. Conceding that the bananas were represented as "straight run," and that some of them were of an inferior quality or grade, upon the other undisputed facts presented by the record, was there such a warranty of the goods sold and delivered as survives acceptance?

This we regard as the vital question in the case.

It clearly appears in this case that appellants did inspect and know just what the bananas were before accepting them. It is not pretended that there were any latent defects in the bananas, but simply that they were not "straight run," and that part of them were "thin, unmatured, green fruit, and not free from culls."

The general rule established by the authorities is that in an executory contract for the sale of personal property, words descriptive of the kind, quality, or nature of the property, do not import a warranty that survives acceptance. The purchaser, in such case, has the right, upon inspection, to reject the goods if not of the particular description ordered, but if he accepts the property after such examination, he can not complain of the defects disclosed by the examination. McConnell v. Jones, 19 Ind. 328; Brown v. Foster, 15 N.E. 608; Studer v. Bleistein, 22 N.E. 243; Pierson v. Crooks, 22 N.E. 349; Coplay Iron Co. v. Pope, 15 N.E. 335.

In McConnell v. Jones, supra, there was an agreement to sell wool "to be washed on the sheep, to be put up in good merchantable order, free from tags." The court, in holding that there was no warranty in this case, say: "According to the case of Ricketts v. Hoyt, 13 Ind. 181, the contract for the sale of the wool did not contain a warranty, proper, but an agreement to deliver washed wool. * * * But, as it (the agreement) was given for wool, to be prepared and delivered at a future time, it amounted to but an agreement to deliver, at such future time, wool of a given character; was but an executory agreement; and a failure to deliver such wool worked, not a breach of warranty of a thing sold, but a simple breach of contract for the delivery of a given kind of article; and it seems that, in the subsequent execution of such executory contract, if the party purchasing accepts the article delivered, in execution, after examining it, or with full opportunity to examine, though the opportunity is voluntary, and without any understanding with the other party, unimproved, he estops himself to deny that the article filled the requirements of the contract."

The case of Day v. Pool, 52 N.Y. 416, is not in favor of appellants. In that case the defects of the article sold were not discernible upon inspection, and there was a warranty of the quality of the syrup sold, which was obviously intended to survive the receipt and use of the syrup. It was, however, held in that case that the vendee in an executory contract can not rely upon a warranty as to defects open and visible.

In the case of Fairbank Canning Co. v. Metzger, 23 N.E. 372, there was a latent defect in the beef sold.

On the question of acceptance, it clearly appears that appellants knew that appellees sent the fruit in fulfillment of their order, and while it is true that appellants, on inspection, insisted that the fruit was not straight run, yet appellees notified them that it was straight run, and that they should so accept it. With this knowledge, appellants took the fruit into their possession and sold it.

In Pierson v. Crooks, supra, the court said: "The general rule is stated in Benjamin on Sales. In section 701, the author says: 'The buyer is entitled, before acceptance, to a fair opportunity of inspecting the goods'; * * and, in section 703 (Bennett's 6th ed.): 'When goods are sent to a buyer in performance of the vendor's contract, the buyer is not precluded from objecting to them by merely receiving them; for receipt is one thing and acceptance another. But receipt will become acceptance if the right of rejection is not exercised within a reasonable time, or if any act be done by the buyer which he would have no right to do unless he were the owner of the goods.'"

In Brown v. Foster, supra, the court said: "The evidence in this case, however, permits an inference that the plaintiff exercised a dominion over the...