Premier Refining Co. v. B. & E. Motor Inc. ( 1924 )

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action upon an account for automobile oil sold by the plaintiff, the manufacturer of “Crystaline Lubricant,” to the defendant, a dealer in automobile oils. The defendant admitted that it received the oil, but set up the defense, among other things, that the oil was utterly worthless for the purpose for which it was bought.

At the time of the trial of the case two papers were introduced in evidence, one defendant’s order for the oil, and the other an indemnity agreement to have been delivered by the defendant to those who purchased the oil from the defendant. In charging the jury the presiding Judge charged that the indemnity agreement was the test of the defendant’s defense. The indemnity agreement bound the manufacturer to make good to the purchasers of the oil for any damage to the consumer that arose from the use of the oil, and was not a part of the agreement between the plaintiff and the defendant. This was manifest error, and was more than a mere misstatement of issues, which must be called to the attention of the Court during the trial. The error was manifest and prejudicial.

The judgment appealed from is reversed.