Bloch v. Eastern Mach. Screw Co.

1 Ohio Law. Abs. 5

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 2, 1922
• Docket: No. 3627
• Status: Published

Opinion

WESTENHAVER, J.:

In July, 1919 the plaintiff, Bloch, purchased from the defendant, Screw Co., 50,000 auto parts, and this action in the court below was for the purchase price. A defense of breach of warranty was set up, as to quality. The many questions involved are controlled by the Uniform Sales Act of Ohio, 8429 GC., the seller claiming failure to give notice of the breach within a reasonable time after he knew, or ought to have known, of it.

One of the vendees testified that on Sept, 9 he wrote a letter of complaint, sufficiently definite to give the required notice, the receipt of which vendor denied. The court below charged the jury that unless the letter was received the defense and counterclaim failed. Instruction was asked that if a letter was mailed the presumption is that it was received. The circuit court followed the charge of the district court and held:

1. Proof of mailing a letter usually raises a so-called presumption that it was received, but this is a disputable inference of fact, and the burden of proof is not thereby shifted to the addressee; it remains upon the one who must prove the notice effected by the letter. The question is one for the jury.

2. Evidence that upon application to the vendees’ office man to urge payment, he promised prompt payment and made no claim of defense, taken in connection with long continued conduct of the same color by defendant, in that it tends to show the goods were not defective, was held admissible, its weight being for the jury.

3. Notice of the claimed defects which constitute the breach must be given, in a reasonably prompt time, under Section 8429, GC.