196
FEDERAL REPORTER,
vol. 48.'
JOHNSON STEEL STREET-RAIL (O£rau'tt
CO.
t1. NORTH BRANCH STEEL
(Jowrt, W. D.Penns'Uwanw. November 12, 1891.) , ,. '
WITNlilSs--QONTB'Ml'T-BpBOIAL EXAMINBRS. '.
On an eXaDlination befOre aspeciai exaIDiner a witness will be cpinpelled, by pro· ceedings In contempt, to al1swer question!! that seem to be material to the issue.
Sur Rule for Attachment. of George Hamilton for contempt. John R. Bennett, for rule. George I. Harding and P. O. Knox,o!>posed.
answer] the·courtgenecally inclines towards the application, and requires an answer wherever It seems prolJable the. testimony may .be relevant. Care, to avoid any unnecessary and improper inquiry however, must be int!;) pri vate affairs." ..
REE'D, J. ,.In my judgment the witness. Hamilton should answer the questions submitted to the court. They related to a period prior to the date of thepateot in suitjand seem material and relevant ·to the issues of anticipation, and pl'iorand public sale Rod use, raised by the defendant. In the case of Robinson v. Railroad Co., 28 Fed. Rep. 340, Judge BUTLER said: "In applications such as this [to compel witnesses before' an examiner to
......Andsuch I understand to have been the view enwrtained by him in the case of Dobson v· Grahflm, cited by' plaintiff's. counsel from a copy of the recorel intbat case, . The.,defendantshould, however, confine his ex,patent in suit. amination to the period ·. pro.or to the date of granting The ultimatedecisiQn,;1lS tQ,etheeflect and materiality (.lfthe testimony, of course rests with the circuit court for tbe eastern district, in whiCh tlle. ease is pending, a!l(,lltilimply the questions 8.0 far as involved in this application,' and upon a partial 'presentation of Hie ease. When' the witness answers the questions Rnd pays the' costs of this ap.' plication the );ulewlll be 'discharged.
'ENGLISH
·al.
1'.
SPOlUNE
Co.
(O£row£t·
E. D. November 2, 1891.)
B.&L'm-BRBAOH '011' WARRANT'Y-WAIVER-AOOBPTANOE OF GOODS.
In an action for the pnce'of goods) where the seller claims damages for breach of warranty, itis a question for the Jury whether, he waived hjs 01aim for damages by accepting the goods after-he had the opportunity to inspect tllem and discover ·their defective oondition. . --
At Law. JO'(j,e8·
On motion for new trial. Voorhees, for plaintiffs.
Turner
Graves and A. G. Avery,
.d:efendant.
ENGLISH 11·.'SPOKANE COMMISS10N CO.
197
HANFORD, J. This case has been tried before the court and a jury; and a verdict rendered fOl'the plaintiffs. The defendant moves fora new trial on the ground of error in law in the instructions and rulings of .the court upon the trial, and because the verdict is contrary to the evidence. The plaintiffs are commission merchants, residing and doing business atOmnha, in the state of Nebraska. The defendant is a corporation engagd in thecommission business and dealing in farmprod 2 nCA at the city of Spokane, in this state. The defendant ordered. from. plaintiffs a car-load of eggs and several car-loads of potatoes, which itrequired for resale to its customers, and the agreed to sell and deliver said merchandise to the defendant at Spokane. All of the eggs and potatoes were to be selected by the plaintiffs, and forwarded without previous inspection by the defendant; and I hold that, upon the admit.! ted allegations of the pleadings and the facts established by proof, contract as made included a warranty of the quality of the goods, and; that the plaintiffs were bOUIid to deliver only strictly fresh eggs and good merchantable potatoes, all in marketable condition. The goods werl!l sent and received by the defendant after payment of the contract price for the eggs and all charges for freight on the potatoes. The plaintiffs brought this caction to recover the contract price of the potatoes, and the defendant pleaded a counter-claim for damages on account of losses sus.tained by reason of the bad condition of the goods, and introduced evi.. dence tending to prove that a large portion of the eggs were stale and. unfit for use, and that a part of each car-load of potatoes were decayed and in bad condition. By the instructions given, the jury were called upon to decide, as a question of fact, whether the defendant had an opportunity to inspect the potatoes, and ascertain their condition and quality; after their ai'tival at Spokane, and before payment of the charges for freight; and the court stated the law to be that if the defendant,did have such 'opportunity for inspection, and failed to reject the entire consignment, any claim which it might have had for damages on account of the bad condition or,qua,!l ity of thep:otatoes was waived, and the case was submitted to the jury upon that theory. It is my opinion now that I was led into error by the before me during the trial, and especially the summary given in Benjamin on Sales of the English cases of Couston v. Chapman, L. R. 2 H. L. Sc. 250, and Grimoldby v. WelLq, L. R. 10 C. P. 396. 2 B Sales, (6th Amer. Ed.) §§ 977, 978. In note 29, on page 856 'nj. of the same volume, it is shown by a collection of American cases that the courts in this country hold the law to be that, if the buyer accepts goods tendered him in fulfillment of an executory contract with warranty, he may recover on the warranty in case of loss sustained by reason ofinferiority,ofthe goods. Parks v. Morris Ax, etc., Co., 54 N. Y. 586, is a case directly sustaining this proposition. The rule is also affirmed in a recent decision of the Rupreme court of this state in the case of Tacoma Coal Co. v.Bradley, 27 Pac. Rep. 454, and in the case of Canning CCkV. Metzger, 118N. Y. 260, 23 N. E. Rep. 372, and Morse v. Moore, At!. Rep. 362j and see Central Law Journal, vol. 33,p. 281, editorially
198
FEDER,A.LREPORTlllR,vol.
48.
refertiflg to the case last.cited, and approving it. I:thirik's:(llear.and truestatementofithe law gdverningthis[caseis contained:in the following 6xtraetsfrom the editorial and 'decision last referred to: "The doctrine that. 'in 'an executory contract for the sale of, goods, an acceptance by tbevendee iS8 waiver of deficient perforooanceby the vendor, applills only where the pefi\liency of performance is f()rmal, ·rather than essential,lJuch,as.may r..t:1a.te to the time, place, and manner of delivery, or affect the taste and' fal\cyof ,the pur()haser merely, or consblt o'$ome omission that produces no essential loss or injury." 33 Cent. Law J. 282·. . "If tbe goods be accepted without objection at the titne, or within a reasonable time·afterwards;tb&evidenceof waiver, unless explainlid. might be conaideredconclusivA. ".Butif, on the other hand, objection is made at the time, and tbevendornotifle(H)fthe defects, and tne defects are material, the inferrepelled; but acceptapclt accompanied by ence of waiv,er would silence is notnecessadly a waiver. Thelaw permitse,xplaoation. add seel,s to know the which aceel?tance. ltmight be that the buyer was not compett'nt to act upon hIS own JUdgment, or had no opportunity to do so, or declined to so act asa matter of expediency; placing his dependence mainly, ashe has a right to.do, upon the warranty of the seller. UPOI) this question the'acts are generaUyfor the jury,.under the direction of the court." Opinion by PETERS, C. in Morss v.Moar-e. The instructions given certainly contained error prejudicial to the defendant. I see no way of escape from the conclusion that the verdict must be vacated, and the motion for a new trial granted, and it is so ordered.
J.,.
eRICAGO SUGAR REFINING
f1. AMERICAN STEAM-BOILER
(O£rcuU Court, N. D.lzu,n0'f.8. November 2S,1811L) L IN8t1UNOB-CONSTRUOT!ON 01' POLIOY-"EXPLOSION .lND AOO!DE'llT."
A polley of insurance upon a sugar refinery provided for indemnity against loss by ".explosion and aocident," and, by a condition on the back thereof, declared that the term "explosion" included only a. "rupture of the shell or flues of the boiler or boilers. caused by the actiOI1 of steam." HeW. that where, in an attempt to extinguish a blaze originating in a starch kiln heated by steam-pipes, a cloud of starch-dust was stirred up'; which came. in contact with. the flame and exploded, this was .an "accident, "W1thin the meaning of the POlicYl and the insurer was liable fordamage to the property caused direotly by the explOSIOn, and by a flre which resulted therefrom, notwithstanding a further that DO claim should be made for "any explosion or loss oaused by the burnlDg of the building," or "for any loss or damage by fire resulting from any cause whatever. " Under a clause insuring against "personal injury and loss of human life," for which the assured isUable in damages, and "which shall be caused by said boilers or any machinery of Whatever kind connected therewith and operated thereby, J the insured could recover the amount it has paid out for loss of life and injuries caused by the explosion,since the kilns were heated by steam-pipes connected with the boilers. . r,
9.
BUlB-INBURANCIll AGAINST LIABILITY FOR PERSONAL INJURIES.
At LaW. Action· by the Chicago Sugar Refining Company against the American Steam-Boiler Company,upon a policy of insurance. Jury waived, and trial by the court. Judgment for plaintiff.
