Summit County Circuit. We are not inclined to think that the line of federal authorities cited by counsel for claimant are sustainable upon the doctrine of fraud and rescission, and not under the law of bailment, and this view is sustained in Quin v. Earl, supra, where most of said cases are reviewed. Decree may be drawn as here indicated. Henry, J., concurs. Marvin, J., not sitting. SALES WORDS AND PHRASES. [Summit (8th) Circuit Court, April Term, 1909.] WIENER BROTHERS Co. v. H. E. CROUSE. "Shortage" Refers to Quantity and not Quality of Apples Shipped. Upon receipt of a shipment of apples consignee wired: "Apples all varieties mixed. Too many bruised and spotted. Release car and if not too much shortage will send check in full. Treat you right." Consignor released the car, consignee sold the apples and remitted for the full quantity of apples shipped, but at a reduced price. In an action for the balance of the agreed price, Held: That the word "shortage" referred to the quantity and not the quality of the apples, and consignee having accepted and sold all the apples, must pay the agreed price for them. WINCH, J. The bill of exceptions in this case discloses a contract entered into by Crouse whereby he sold to plaintiff in error and it agreed to buy a carload of apples at $1.65 per hundred pounds delivered on the track at Akron, freight paid. Two-thirds of the apples were to be red in color, mostly Baldwins, and all were to be handpicked and the colors separated in the car. A carload of apples was shipped to Akron consigned to the seller, with orders to deliver to plaintiff in error; upon arrival of the car plaintiff in error inspected the apples and wired Crouse as follows: "Apples all varieties mixed. Too many bruised and spotted. Wiener Bros. Co. v. Crouse. Release car and if not too much shortage will send check in full. Treat you right." Crouse agreed to this proposition, released the car, and the Wiener Brothers Co. took the apples and sold them, but remitted to Crouse for the full quantity of apples at the rate of $1.50 per hundred weight only, less freight and a commission on sales, claiming that the apples were not up to representations and that they had sold them for the best price obtainable for Crouse's account to save him loss, the apples being perishable. Crouse sued for balance of the agreed price for the apples and recovered. The only complaint of plaintiff in error is with regard to the charge in that the trial judge charged among other things as follows: "As the court has indicated, the quality is a part of the description of the apples agreed to be sold and the plaintiff was bound to furnish apples corresponding with the description. If he tendered apples of an inferior quality the defendant was not bound to accept them. But if he did accept them, it is, in the absence of fraud, deemed to have assented that they corresponded with the description, and it is concluded from subsequently questioning it. "This imposed upon the defendant the duty of inspection before acceptance, if it desired to save its rights in case the apples were of inferior quality. It could do nothing which was inconsistent with the right of rejection, or do only what was consistent with acceptance and ownership, without precluding itself. "When the purchaser has a full opportunity to inspect the property but fails to do so, and the representations were not such as should have misled him, he has no right to complain if the property sold does not measure up to the representations of the seller. It is said that this charge was misleading because after inspection of the apples the defendant below sent the telegram. already mentioned whereby the contract was modified to the extent that it was not to pay in full, if there was too much shortage, and that the evidence clearly disclosed a large shortage. In argument it was claimed that the word "shortage" referred to quality as well as quantity, but with this interpretation of the word we can not agree. Summit County Circuit. The defendant paid for the full quantity of apples shipped, but at a lower price than agreed. He thus conceded that there was no shortage of quantity. Had he rejected the bruised and spotted apples and paid for the balance at the agreed price, his claims might have been more tenable, for thus would have arisen a shortage perhaps covered by the wording of the telegram. We find no error in the charge and the jury appears to have reached a proper conclusion. Judgment affirmed. Henry and Marvin, JJ., concur. ERROR-RAILROADS. [Summit (8th) Circuit Court, April Term, 1909.] Henry, Marvin and Winch, JJ. AKRON (CITY) v. H. H. TEMPLE. 1. Parol Evidence of Written Contract for Operating Trains over other Railroad Competent in Prosecution for Trains Occupying Crossings Over Time. The superintendent of a division of a railroad having testified in a prosecution for violation of an ordinance regulating the time a train may be permitted to stand across a street crossing, that his railroad had nothing to do with the operation of trains on the division where the crossing existed, it is error to refuse to consider his evidence to that effect when it subsequently develops in the trial that the traffic agreement with another railroad regulating control of trains at the place in question was in writing. 2 Common Pleas Reviewing Conviction before Mayor Remands Case. Upon reversal by the common pleas of a judgment of conviction for violation of a municipal ordinance in a mayor's court, the cause should be remanded to the mayor's court for further proceedings, unless the ordinance in question is invalid, or no offense was charged in the affidavit. 3. Municipality has Authority to Enact Ordinance Regulating Time Trains Occupy Crossings. A municipal corporation has authority to pass an ordinance regulating the time railroad trains may be permitted to stand across street crossings. ERROR. Akron v. Temple. WINCH, J. H. H. Temple is the superintendent of the Newcastle division of the Baltimore & O. Ry., extending from Newcastle, Pa., to and through Akron, Summit county, Ohio, to Chicago Junetion, Ohio. He was arrested for violating an ordinance of the city of Akron which makes it a misdemeanor to permit a train of cars to stand or remain more than five minutes on any street or alley of said city where a railroad crosses such street or alley at grade, was tried by the mayor of said city and convicted. On error to the common pleas court said court reversed the judgment of the mayor's court and discharged the accused. The case has been brought here on error for a review of said judgment of reversal. Of course, if there was any error in the trial of the accused, by the mayor, prejudicial to his rights, said judgment of reversal must be affirmed. We think there was at least one serious error committed by the mayor in his rulings on the admissibility of evidence. J. T. Johnson, superintendent of the Cleveland division of the Baltimore & O. Ry., was offered as a witness by the prosecution and upon cross-examination testified, over the objection of the prosecution, that the Baltimore & O. Ry. had no supervision over the movement of trains upon that part of its Newcastle division which lies between Akron Junction and Warwick, including the tracks where the train had been permitted to stand, but that the Cleveland, A. & C. Ry. directed the movement of all trains over said portion of the tracks under an agreement between the two railroad companies. Upon redirect examination it was brought out that the agreement referred to was in writing, whereupon the prosecution requested that the testimony of the witness relating to the movement of trains between Akron Junction and Warwick be disregarded, because the written document was the best evidence. This motion was granted and thereby the accused was prejudiced in his rights. The question was, who actually had supervision of the trains at the point in question. Whether the right to supervision was dependent upon a written agreement or not, made no difference. It was for the prosecution to establish that Temple had control Summit County Circuit. over the movement of the train complained of which blocked the street. Its own witness testified that he did not; it was immaterial that it subsequently developed that the reason he had no control at that point was because of a written agreement with some other railroad whereby the other road had said control. The question was what was done under contract, not what the terms of the contract might be. The accused offered competent evidence to prove that he had nothing to do directly or indirectly with the movement of the train in question at the time and place complained of. By the rejection of this evidence his rights were seriously prejudiced. Had this evidence been considered, no judgment against him could stand. For this reason, if for no other, the judgment of the mayor was properly reversed. But upon reversal of the cause, the common pleas court should have remanded the case to the mayor's court for further proceedings, unless it was found that the ordinance was invalid or no offense was charged in the affidavit. Upon this point we hold that a municipal corporation has authority to pass ordinances upon the subject in question by virtue of Sec. 1536-131 R. S. (Sec. 3714 G. C.), which imposes upon the council of a municipality the care, supervision and control of public highways, streets, etc., within the corporation, with directions that it shall cause the same to be kept open and in repair and free from nuisance. The ordinance in question not being set forth in the bill of exceptions, we must assume that it conformed to the authority thus given and the affidavit we find charges an offense within the intendment of a valid ordinance upon the subject. It was error, therefore, to discharge the accused. The judgment of reversal is affirmed, but the order discharging the accused is reversed and the cause is remanded to the court of common pleas for further proceedings. Henry and Marvin, JJ., concur. |