Texas Fruit Co. v. Lane ( 1903 )

BLAND, P. J.

It is admitted by defendants all the way through their evidence, and the bill of sale shows ■on its face, that the defendants sold and the plaintiff bought apples that should grade as No. 1. All the barrels of apples stored in the refrigerator by defendants were marked “Lane & Lane” or “L. & L.,” and the evidence is that all the barrels received at Denison were marked in the same way and there is no evidence tending to prove, nor is it claimed, that the cold storage company shipped any apples to the Denison Bank, other than the identical apples stored with it by Lane & Lane, so that the only controverted questions of fact in the •case on the trial were whether or not the apples delivered came up to the grade sold and purchased, and whether or not they were purchased after inspection, or •on ah implied warranty as to grade.

The sale and delivery was at Springfield, and defendant’s contention is that they were fully inspected, at that point before the sale, and that the salé was not on a warranty as to quality or grade, but on inspection by the buyer of the goods before it purchased. We do not think that the evidence even tends to bear out this contention. Mazzei, according to the evidence most favorable to the defendants, did not inspect as much as ten per cent of the barrels, and the situation of the apples packed in barrels and the barrels piled in tiers one above another almost to the ceiling of the storage room and the time taken by Mazzei to make an inspection,, shows conclusively that he could not have inspected ten per cent of the barrels during the time which he took for inspection. Besides, the evidence of both Mazzei and W. C. Lane is, that, after Mazzei had inspected a number of the barrels, he expressed himself as pleased with the quality and size of the apples he had seen and asked W. C. Lane if all the apples would come up to the grade of those he inspected, and Lane assured him that they would and that every barrel would grade No. 1. On this assurance Mazzei then and there decided to take 2,000 barrels at a price then agreed upon.

We think the evidence conclusively shows a sale by sample, carrying an implied warranty that the lot should correspond in size and grade to the sample (the barrels inspected). The evidence as to whether they did so correspond is very conflicting. The jury, however, on substantial evidence, found that they did not. This finding is conclusive here and the judgment should be, affirmed, unless error intervened in the giving or the refusing of instructions. It seems to us the instructions given by the court contained a clear, concise and correct exposition of the law of the case and cover every issue tendered by the pleadings that find any support in the evidence. It is, therefore, immaterial whether the refused instructions asked by defendant were correct or not. They got, in those given, all they were entitled to.

The judgment is affirmed.

Reyburn, J., concurs; Goode, J., not sitting.