McMyler v. Beckman Co.

Cuyahoga Circuit Court

McMyler v. Beckman Co.

31 Ohio C.C. Dec. 697, 17 Ohio C.C. (n.s.) 32, 1909 Ohio Misc. LEXIS 399

DecidedJune 18, 1909

StatusPublished

This text of 31 Ohio C.C. Dec. 697 (McMyler v. Beckman Co.) is published on Counsel Stack Legal Research, covering Cuyahoga Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McMyler v. Beckman Co., 31 Ohio C.C. Dec. 697, 17 Ohio C.C. (n.s.) 32, 1909 Ohio Misc. LEXIS 399 (Ohio Super. Ct. 1909).

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Opinion

WINCH, J.

In this ease we think that it was incumbent upon the plaintiff to show that the defendant company was satisfied with the stokers furnished (the contract being that the defendant would accept and pay for the same if satisfied with them), and having failed to show this material part of his case, his first cause of action was properly dismissed. The mere fact that the defendant kept and used the stokers from April to November before it ordered them out, was not sufficient to require a submission of this cause of action to the jury, for the plaintiff submitted [698]*698this fact, with an explanation that continuously during that time he was working upon the stokers, manifestly because they were not satisfactory to the defendant.

There was no error in excluding the letter written by Mehling, the managing officer of the defendant company, to Lieber, of the Indianapolis Brewing Co., recommending the stokers. If Mehling had authority to bind the defendant company by his admissions, it was only in transactions that he was authorized to carry on and to those with whom he was dealing in behalf of his authority and properly rejected, being offered as substantive proof that the company was satisfied with the stokers. The use of the letter to contradict or impeach any evidence offered by the defendant, was not involved.

We have examined all the claims of error, and finding nothing prejudicial to the rights of the plaintiff in error, the judgment is affirmed.

Marvin and Henry, JJ., concur.

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WINCH, J.

In this ease we think that it was incumbent upon the plaintiff to show that the defendant company was satisfied with the stokers furnished (the contract being that the defendant would accept and pay for the same if satisfied with them), and having failed to show this material part of his case, his first cause of action was properly dismissed. The mere fact that the defendant kept and used the stokers from April to November before it ordered them out, was not sufficient to require a submission of this cause of action to the jury, for the plaintiff submitted [698]*698this fact, with an explanation that continuously during that time he was working upon the stokers, manifestly because they were not satisfactory to the defendant.

There was no error in excluding the letter written by Mehling, the managing officer of the defendant company, to Lieber, of the Indianapolis Brewing Co., recommending the stokers. If Mehling had authority to bind the defendant company by his admissions, it was only in transactions that he was authorized to carry on and to those with whom he was dealing in behalf of his authority and properly rejected, being offered as substantive proof that the company was satisfied with the stokers. The use of the letter to contradict or impeach any evidence offered by the defendant, was not involved.

We have examined all the claims of error, and finding nothing prejudicial to the rights of the plaintiff in error, the judgment is affirmed.

Marvin and Henry, JJ., concur.

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Bluebook (online)

31 Ohio C.C. Dec. 697, 17 Ohio C.C. (n.s.) 32, 1909 Ohio Misc. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmyler-v-beckman-co-ohcirctcuyahoga-1909.