O. L. Packard Machinery Co. v. Schweiger

SiebeckeR, J. The court held that the opinion expressed by the plaintiff’s agent, Mr. Bull, to the defendant before any correspondence took place between the parties, that the bolt shown the .agent by the defendant was a 3-16 inch bolt, constituted a representation on which the defendant had a right to rely in making the purchase and that its falsity operated to defraud the defendant. It is clear that the evidence does not permit of such an inference. It is obvious that it was equally within the means of the defendant and the plaintiff’s agent, before the bolts were ordered, readily to ascertain the size of 69 tiie bolt defendant exhibited to tbe plaintiff’s agent. It is apparent from tbe circumstances disclosing what occurred at tbe time that tbe plaintiff’s agent was merely expressing bis opinion of the size of tbe bolt shown him by tbe defendant, and that tbe defendant was not justified in relying on such opinion as tbe actual size of tbe bolts be needed in bis business and desired to purchase. Knowledge of tbe actual size of tbe exhibited bolt was readily open to tbe defendant by applying any simple and ordinary means of measuring it. Uor does tbe evidence tend to show that tbe defendant was hindered or prevented through artifice or otherwise from acquiring accurate knowledge of this fact. Tbe conclusion is inevitable that tbe defendant failed to act with that care and prudence tbe situation demanded to inform himself on tbe subject of bis purchase, and hence be cannot complain of having ordered a kind of bolts different from those be bad theretofore used. Upon these considerations tbe judgment dismissing tbe complaint cannot be sustained. Upon tbe record the plaintiff is entitled to recover tbe purchase price of tbe goods delivered.. By the Court. — Tbe judgment appealed from is reversed, and tbe cause remanded with directions to award tbe plaintiff judgment for tbe purchase price of tbe bolts delivered, with interest thereon, and for costs. Barnes, J., took no part.