American Glue Co. v. Rayburn

Grant, O. J. (after stating the facts). 1. The court-submitted the case to the jury upon the theory that the contract called for glue of the same quality as that which had been furnished during the testing period. We think the record discloses that the case was tried by both parties upon that theory. It is, however, now insisted by the plaintiff that the contract provides for two qualities, and that if the plaintiff furnished glue of either quality it had complied with the contract. Counsel base this claim upon that provision of the contract reading: “Quality in every way to be up to standard, or same as has been delivered during past 60 days.” [619] We think counsel’s position is unsound. Both parties to the contract understood the use to be made of the glue. Its use was a specific one. The defendants desired only-one standard or quality, and that was the one which complied with the samples furnished and upon which the contract was based. The contract was a warranty that the glue to be furnished under it should be equal to that which had been furnished during the testing period, and the court correctly so instructed the jury. The evidence on this question was in sharp conflict. 2. Counsel for plaintiff preferred several requests bearing upon the absence of proof of any defect in the glue. The position appears to be that, to use their own language: “ The proof should locate the defect in the glue, identifying it as a thing for which the plaintiff alone was liable.” The defendants gave evidence to show that the test glue securely held the panels together; that the contract glue did not; that they used the glue in precisely the same way as they did the test glue; that the same man mixed both; that they used the same kind of lumber, and that it was in the same condition as that used during the test period. This was sufficient evidence to prove that the contract glue was not equal to the test glue. Defendants were under no obligations to show what the defect was. Proof that they, used the glue under precisely the same conditions and circumstances, and that it did not hold the panels together, was sufficient evidence to go to the jury that the glue was defective, and not suchas the contract called for. 3. It is also insisted that the defendants continued to receive and use the glue after they had ascertained that it did not hold the panels; that it was their duty to notify the plaintiff as soon as the glue became unsatisfactory, and, not having done so, they cannot recover. This is perhaps the most doubtful question in the case. The de [620] fendants were bound to give the glue a fair trial. Their own protection required that they- use every reasonable means to determine whether the fault was with the glue or arose from some other cause, and they were authorized in taking sufficient time to investigate the cause of the trouble. They and their witnesses testified to various things which they did during this period to see if the fault lay anywhere else than with the glue. They testified that there was some trouble in December, and that after that the trouble increased, panels came apart more frequently, and some they had shipped to customers were returned. The court very pointedly and clearly instructed the jury that it was the defendants’ duty to notify the plaintiff as soon as they knew or should have known that the fault was with the glue, and that they could not recover damages for bad panels constructed after they should have become satisfied that the glue was bad. The court used this language: “I say that they [defendants] ought not to recoup damages, after they should, as honest men, of reasonable judgment and prudence, have become satisfied that the glue was at fault for use in making these panels.” The question was properly submitted to the jury, unless the law required the defendants to notify the plaintiff upon discovery that for some reason the panels were bad, discontinue its use and cease their investigation as to the cause of the trouble. We do not think the law imposed that duty upon them. They had a right to assume that the plaintiff was performing its contract, and were justified in using the glue and pursuing their investigations until they had become satisfied where the fault lay. Then it was their duty to act. 4. There are many assignments of error as to the admission and rejection of evidence bearing upon the questions above discussed. They have had due consideration, and we find no prejudicial error in them. No question is raised as to the correctness of the measure of damages [621] given by the court to the jury, but there are many assignments of error upon the admission and rejection of testimony bearing upon the damages. We have also examined these, and find no prejudicial error. The trial of this case was long and hotly contested, lasting eight days. On the material points there was a direct conflict of evidence. All the evidence material for the jury to consider was admitted. None that was rejected, even if some of it might with propriety have been admitted, could have been of such a character as to affect the verdict. Judgment affirmed. Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.