For reversal of this case plaintiff relies upon three propositions as follows:
"First. That the verdict is not supported by the evidence but is contrary to law.
"Second. That the court erred in giving instruction No. 6 to the jury.
"Third. That the court erred in overruling plaintiff's motion for a new trial."
It is apparent that the third proposition is wholly dependent upon the maintenance of plaintiff's contention under either the first or second proposition, for if neither of these propositions be sustained it must follow that the third proposition is likewise without merit.
It appears from an examination of the testimony preserved in the record that 72-hr. Connelsville foundry coke is a recognized and established grade of coke made and prepared for certain uses and purposes in connection with work done in foundries. It is to be inferred from the testimony that this grade of coke is the best grade made, and that inferior to this is a grade known as 48-hr. coke which is made largely from the culls and waste coal left over in the process of making the 72-hr. coke. Defendant's testimony in support of its cross-petition tended to establish that when this car of coke arrived at destination it was necessary to unload it before its grade and quality could be definitely determined. That in order to do this it paid the freight charges and the charges for unloading, and that when so unloaded this shipment was found to consist almost entirely of 48-hr. coke, with considerable slack, cinders, and ashes. That it was a very inferior grade, and that upon testing same in defendant's foundry it was found to be wholly unfit for use and worthless as foundry coke. It is further shown that within a reasonable time after the unloading of the car defendant took samples of the coke and shipped them to plaintiff for examination and inspection, and that it wrote a letter informing the plaintiff of the inferior quality of the coke and of its unfitness for use in the defendant's foundry, and demanded that plaintiff make other disposition of the shipment. Plaintiff refused to receive from the express office the samples sent it and refused to receive back the shipment or to make any other disposition of it or to adjust in any manner its claim against the defendant. On behalf of plaintiff the testimony tended to show that its 72-hr. coke was taken from its oven on Monday and Tuesday of each week, and that its 48-hr. coke and other inferior grades were never removed from its ovens on the same days as the 72-hr. coke was removed. It was further shown that the carload in question was loaded directly from its ovens on Tuesday, one of the days on which only 72-hr. coke was removed therefrom. The testimony further tended to show that after the samples were sent to the plaintiff and defendant's letter calling attention to the inferior quality of the coke had been mailed, defendant continued to use or attempted to use this coke during the month of December, and that it used an amount estimated roughly at from 12 to 18 tons, and that during this time defendant had no other coke on hand for use in its foundry.
With the testimony in this condition the trial court gave to the jury the following instruction:
"With reference to the second question, the matter of acceptance, you are told that the reception by a purchaser of a given commodity and its retention by him, as a matter of law constitutes an acceptance. However, there are exceptions to the rule. In this case you are told that the law applicable to the facts as presented by the evidence, is this: That the defendant had a right as a *Page 105 matter of law to make an inspection of the coke that was shipped to the defendant at Yale, Okla., that he had a right, if necessary, to unload it and test it and use it or a portion of it or enough of it to determine whether or not it fulfilled the requirement of the grade of coke that he was ordering. However, he would not be permitted to use any greater quantity than is necessary to determine whether or not the quality of the goods measured up to the warranty or implied warranty. In this connection you are told that if you find by a preponderance of the evidence in this case that the coke in question was delivered to the defendant corporation in Yale, Okla., and was by that company accepted and that the company proceeded to use the same and did use an amount thereof in excess of what was necessary to test its quality, that as a matter of law that would constitute an acceptance and your verdict should be for the plaintiff for the amount sued for. On the other hand, if you find that the amount used was only an amount sufficient to enable the defendant to determine the quality of the article, and you further find that the quality of the article was such that it did not measure up to the implied warranty, your verdict will be for the defendant."
It is evident that the jury, in arriving at the verdict which it returned, disregarded that portion of the above instruction which defined what would constitute an acceptance. If the use of from 12 to 18 tons of a 36-ton car of coke is not sufficient to constitute an acceptance, and does not transcend the rule in regard to testing without acceptance, it would be difficult to conceive a state of facts which would bind a purchaser by the rule of implied acceptance.
It is therefore concluded that plaintiff's first proposition is correct, and that the verdict of the jury is not sustained by the evidence, but is contrary thereto. Being contrary to the evidence, it is also contrary to the law as contained in instruction No. 6, above quoted. It therefore follows that plaintiff's third proposition is correct, and that the trial court erred prejudicially in overruling the motion for new trial.
The judgment should be reversed and remanded for a new trial.
By the Court: It is so ordered.