Citation Numbers： 6 Ohio Law. Abs. 574, 1927 Ohio Misc. LEXIS 1008
Judges： Farr, Pollock, Roberts
Filed Date： 10/7/1927
Status： Precedential
Modified Date： 10/18/2024
We do not think, after a perusal of the instructions of the court and the evidence that it can be said that prejudicial or reversible error occurred in this respect. The jury were expressly directed by the court not to consider that contract as substantive evidence in the case but it was admitted only as a background by which an understanding could be arrived at concerning the relations of the parties.
It is further urged that the court committed error in refusing to permit the defendant in error to show by witnesses that the custom existed in California of shipping grapes in box cars. We think the court was correct, that where there were specifications of a particular kind of cars, it was not proper to introduce testimony of custom that other cars were used for that purpose. The parties had a right to: contract for a particular kind of car.
Bills of lading indicated that these grapes were shipped in box cars and loaded by method number two, so that adopting the theory of counsel for the plaintiff in error, a scanning of the bill of lading which it purchased and which it seems to have been understood to have been the duty of the Bank of Italy to bring to that bank the direct knowledge that these grapes’ were being shipped in box cars, while the letter of credit which it had from the Youngstown bank specified that they were to be shipped in ventilator cars.
Proceeding now to the question of damages, the important proposition seems to be in connection with the use of box ears- instead of ventilator cars. There could only be a recovery under the agreement of counsel in this case, for the $2,700. The jury having found damage of over $4,000, and it is not improbable, that the jury found a total damage to the grapes by reason of lack of ventilation in a greater sum than there can be a recovery for in this action under the circumstances that have been stated, taking into consideration such sum as might also be recognized for these other matters- and conditions concerning which complaint is made.
The verdict was not tested by interrogatories, special verdicts or otherwise. If the jury had found, as a matter of fact, an amount of damages by reason of lack of ventilation and the use of box cars in excess of the amount of recovery, then there would be no reversible error in this case under this theory. The law is- well settled in Ohio that where there are two issues submitted and there is error in connection with one, if the other issue is sufficient for the verdict and
It is sufficient to say in conclusion that the jury may well have found the damages sufficient in amount to cover the amount recoverable under the issues in this case and the damage in the case to' result from improper ventilation resulting from the use of box cars, and that being a proposition which we think un-disputedly brought to the direct knowledge of the Bank of Italy without taking into consideration the other matters which are claimed to constitute liability on the Bank of Italy. We think that upon this proposition it is sufficient to say in conclusion that no prejudicial error can he held to exist, and the judgment of the Court of Common Pleas is affirmed.
We think that the trial court should not have allowed interest on the sum agreed upon as fixed by the amount attached to give the court jurisdiction over the defendant below, the Bank of Italy, and judgment will he reversed contingent upon the plaintiffs below remitting this interest down to the sum agreed upon.