Epitomized Opinion
Published Only in Ohio Law Abstract
Th'e Bank of Knobel brought an action on a contract for a carload of lumber shipped by Holton Lumber Co. to defendants at Elyria, Ohio.
The account was assigned by Holton Lumber Co. to the bank. Defendants answered by general denial and further alleged that they had bought two cars of lumber instead of one, and that Holton Lumber Co. shipped only one car to defendant’s damage, by reason of which defendant owed nothing on the account, and further alleged that the assignment to the bank was made to avoid liability for damages by reason of failure to ship the second car and in an effort to collect for partial performance.
The bank in its reply set up a general denial and further, that defendants had violated the contract by refusing to pay for the first car. Judgment of the court below was for th« plaintiff.
The evidence shows a contract for one car only. Defendant Persons testified that the lumber in the car was not of the kind of lumber provided for in the contract. Principal errors complained of are error in the charge and in the admission and rejection of evidence.
The court charged that “the measure of re-coupment of damages in a case of this character is the difference between the contract price of the car of lumber ordered by the defendants and the value of the lumber actually delivered to them.”
The court permitted testimony to be introduced on behalf of the bank, to the effect that the shipment was in “compliance” with the order, and further permitted a witness on behalf of the bank to testify as to what one of its exhibits in evidence consisted of. Held:
1. The trial court erred in its charge to the jury as to the measure of damages. The measure of damages for breach of warranty •is fixed by the legislature in 8449(7) GC.
2. The trial court erred in permitted the bank’s witness to testify that the order had been complied with and further, in permitting the bank’s witness to testify what its written invoice which was introduced in evidence, consisted of. The invoice speaks for itself. Judgment reversed.