Chesapeake & Ohio Railway Co. v. Ralph , 11 Ohio Law. Abs. 576 ( 1931 )

MAUCK, PJ.

Some of the authorities in some of the jurisdictions take the view contended for by the plaintiff in error. In Shawhan v Van Nest, 25 Oh St 490, and in Cullen v Binn, 37 Oh St 236, the Supreme Court of this state has taken the other view. In the Shawhan case it especially develops the opposing views and after elaborate discussion holds that the vendor has upon the performance of the contract the right to sue for the purchase price whether the vendee accepts delivery or not. We deem these authorities controlling.

The additional argument that in this particular case custom required the inspection of the goods sold at such point of destination as the railroad company might, fix is without merit. No such custom was pleaded, and not being pleaded could not have been shown.

The record is free from error and the judgment is affirmed.

MIDDLETON and BLOSSER, JJ, concur.