Schopp v. Taft

• Decision Date: 27 October 1898
• Parties: SCHOPP v. TAFT ET AL.
• Court: Iowa Supreme Court

106 Iowa 612

76 N.W. 843

SCHOPP

v.TAFT ET AL.

Supreme Court of Iowa.

Oct. 27, 1898.

Appeal from district court, Polk county; W. A. Spurrier, Judge.

Action at law to recover the purchase price of certain strawberries sold and delivered to the defendants. Defendants admit the purchase, but plead that the berries were not of the character and quality ordered. They say that when delivered the berries were badly decayed, and were not worth to exceed the sum of $160, which amount they tendered to the plaintiff, with costs of suit. Defendants further aver that the plaintiff negligently and carelessly shipped the berries in a car partially filled with cabbage; that the cabbage caused the car to become heated, and that the berries were injured thereby; and that defendants have been damaged in the sum of $280. The case was submitted to a jury, resulting in a verdict and judgment for the plaintiff, and defendants appeal. Affirmed.Berryhill & Henry, for appellants.

Cummins, Hewitt & Wright, for appellee.

DEEMER, C. J.

The trial court submitted the case to the jury on the issue of negligence, and refused an instruction asked by the defendants in the following words: “If the contract was for a certain quality of berries, and you find that the berries were not of that quality when loaded in St. Louis, then defendants are not prevented, by reason of taking the berries from the car, from recovering such damages as resulted to the defendants from the fact that the berries were not of the quality ordered, or from the fact, if you find it to be a fact, that the berries were shipped with cabbage, and that the presence of such cabbages brought about the injury or damage to the berries. If you find that such damages resulted to the defendants, then you are to allow such damages as a credit upon the contract price for the berries.” Error is assigned upon this refusal. It will be noticed that the defendants do not plead breach of warranty in the sale of the property. Their defense is that the berries were not of the kind and quality ordered, and were not worth to exceed the sum of $160. The evidence shows that they accepted the fruit without objection, and refused to pay because it was not what they ordered. We understand the law to be well settled that when goods are tendered by the seller in performance of an executory contract of sale, and accepted by the buyer after opportunity of inspection, without objection, the purchaser is liable for the price agreed upon, unless there be a...