Winkler v. Reed , 1923 Ohio Misc. LEXIS 1519 ( 1923 )

This was an action by Winkler to recover $600 damage for alleged failure on the part of one Reed to permit plaintiff to take ana carry away from the premises of the defendant certain timber and logs which plaintiff contends were purchased for the sum of $300 and fully paid for. The defendant claimed that the purchase price was $350 and that there was a balance due him of $50.00. It appeared that the plaintiff sent a check to the defendant upon which there was written the following words: “For all timber down in woods and cornfield 12 inches in diameter and up.”

Immediately upon receipt of this check defendant wrote the plaintiff that there was still $50 due. Three days later the defendant cashed the check for $300. One month later Wink-ler wrote Reed that if he did not want the $300 to mail him back the money and keep the timber. This was not done by the defendant. The plaintiff contended that as the defendant did not rescind the contract and send back the money he could not recover the $50, even assuming that the same' was due. A jury returned a verdict for defendant in the sum of $50. Plaintiff prosecuted error. In sustaining the judgment of the lower court, the Court of Appeals held:

1. It cannot be said as a matter of law that the words “for all timber” meant a receipt in full.

2. As the buyer did not offer to rescind within a reasonable length of time, the seller was not bound to follow the instructions of the buyer .in this regard.

3. It cannot be said as a matter of law that the verdict of the jury was manifestly againss the weight of the evidence.