Lamborn v. Bender

Ohio Court of Appeals

Lamborn v. Bender

1 Ohio Law. Abs. 394, 1923 Ohio Misc. LEXIS 1846

CourtOhio Court of Appeals

DecidedApril 9, 1923

DocketNo. 4205

StatusPublished

This text of 1 Ohio Law. Abs. 394 (Lamborn v. Bender) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lamborn v. Bender, 1 Ohio Law. Abs. 394, 1923 Ohio Misc. LEXIS 1846 (Ohio Ct. App. 1923).

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Opinion

VICKERY, P. J.:

Vickery, Sullivan and Levine, JJ.

Epitomized Opinion

Lamborn and Bender entered into a contract for the sale and delivery of twenty-five tons of Standard Fine Granulated Sugar f. o. b. New York. The goods were shipped to the order of Lamborn and a bill of" lading, with a draft for the purchase price attached, was sent to a bank at Sandusky with orders’ to notify Bender. He paid the draft and after examining the sugar found that it was ’far inferior to the quality ordered and of no use to him. He thereupon notified Lamborn of his refusal to accept it and asked “what disposition he should make of the sugar.” No satisfactory arrangement was made and Bender recovered in the lower court. The only error complained of is that this’action’ of Bender amounted to a rescission of the contract and that when he’ paid the draft the possession of the property vested in Bender and that before a rescission of, the contract could be completed, he must tender back the goods. Held by Court of Appeals in affirming for Bender: ■ . ■

-1. We think the case at bar comes squarely within the case of Rhinestrom v. Steiner, 69 O. S. 452, where it was held that -where a party under contract to deliver.. certain specific goods delivers to the buyer goods of.a kind not conforming to the contract -and upon examining them: and- without delay the buyer-informs the seller ;pf, tliat-fact, no tender is required. If.is sufficient if thpvbuyer- gives, the'seller ..clearl-y to understand that he refuses to accept the goods. This-situation is provided for in GC. 8420. (See 19 Abs. 376.)

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VICKERY, P. J.:

Vickery, Sullivan and Levine, JJ.

Epitomized Opinion

Lamborn and Bender entered into a contract for the sale and delivery of twenty-five tons of Standard Fine Granulated Sugar f. o. b. New York. The goods were shipped to the order of Lamborn and a bill of" lading, with a draft for the purchase price attached, was sent to a bank at Sandusky with orders’ to notify Bender. He paid the draft and after examining the sugar found that it was ’far inferior to the quality ordered and of no use to him. He thereupon notified Lamborn of his refusal to accept it and asked “what disposition he should make of the sugar.” No satisfactory arrangement was made and Bender recovered in the lower court. The only error complained of is that this’action’ of Bender amounted to a rescission of the contract and that when he’ paid the draft the possession of the property vested in Bender and that before a rescission of, the contract could be completed, he must tender back the goods. Held by Court of Appeals in affirming for Bender: ■ . ■

-1. We think the case at bar comes squarely within the case of Rhinestrom v. Steiner, 69 O. S. 452, where it was held that -where a party under contract to deliver.. certain specific goods delivers to the buyer goods of.a kind not conforming to the contract -and upon examining them: and- without delay the buyer-informs the seller ;pf, tliat-fact, no tender is required. If.is sufficient if thpvbuyer- gives, the'seller ..clearl-y to understand that he refuses to accept the goods. This-situation is provided for in GC. 8420. (See 19 Abs. 376.)

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Bluebook (online)

1 Ohio Law. Abs. 394, 1923 Ohio Misc. LEXIS 1846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamborn-v-bender-ohioctapp-1923.

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