Smith v. New Albany Rail Mill Co.

Cockrill, C. J. The appellant ordered iron rails from the appellee. When the rails arrived he discovered that they were second class rails and were of an inferior quality. He desired first class rails, and in .previous dealings with the appellee had instructed the company never to send him second class rails. Their charges were *$35.00 and $36.00 respectively per ton for thé two grades. Smith notified the appellee that the rails were of inferior quality. The reply was that if the fails'were found to he bad, not to receive them. Smith accepted them, however. used them, and some months- afterwards- admitted his indebtedness for the balance due on the account rendered by the appellee at the rate of $35.00 per ton. When sued before a J. P. for a small balance due on the account nearly a year after the purchase, for the first time he made a claim .for a rebate in .the price on account of the defects first complained of. ' He offered to prove at the trial that he could have purchased similar rails for lesa money than the plaintiff charged, and asked the court to instruct the jury that the plaintiff could not recover more than the market value of the rails. The court excluded the testimony and refused to charge the jury as requested. There was a verdict and judgment for the plaintiff- The market value of the rails was not material to the issue. The plaintiff gave the defendant the option to-accept the property shipped to hjm at the price statedr or to reject it outright. That was the legal effect of their transaction. He accepted the property with full knowledge of its inferiority, used it, and then promised to pay the price stipulated. These facts were uncontro-verted. The jury could not legally return a verdict for the’ defendant on this evidence. Affirm.