
    No. 25
    BISHOPRIC MFG. CO. v. FERGUSON ET AL.
    Ohio Supreme Court,
    No. 17142
    June 6, 1922
    For full opinion see 105 OS., 274
    SALES — Two separate purchases at different prices — ■ (1) Priority as to filling fii-st order before the higher priced second — (3) Waiver, hy paying on second or- ■ der, a question for jury.
    Error to Hamilton Court of Appeals.
    Attorneys — Nathan R. Park and George H. Katten-horn, for Bishopric Co.; Creed & Creed and Dempsey & Dempsey, for Ferguson.
   PER CURIAM:

Epitomized Opinion.

Ferguson brought a common pleas suit to recover on two separate contracts of lath, sold to the Bishopric Co., to have been paid for within 60 days after delivery. The first order was for fifty carloads at $3.30 per 1000 lath, and the second was for 25 carloads at $5.10 per 1000. Prior to the second contract 18 carloads had been shipped on the first contract and billed at $3.30. After the second contract, 12 cars more were shipped and billed at $3.30 and 17 cars at the $5.10 price. Five of the latter were paid for at the higher price invoice, claimed to have been the result of a mistake of the purchaser, who insisted that the seller had no right to ship under the second contract until the first had been fully completed. The seller claimed the right to deliver concurrently upon both contracts.

The defense claimed that -the whole 47 cars were on the first contract, and also asked damages by way of counterclaim, for 20 cars which the seller had failed to deliver, and alleged that it was compelled to purchase in open market at a higher price. The verdict of the jury gave the, seller,his claim, less the counterclaim. The court of appeals reversed the judgment and rendered in favor of the seller for the amount claimed by it. The Supreme Court held:

1. In view of the facts disclosed, and because of the terms employed by the parties in their two written contracts, the consignee was entitled to the completion of the first order, before beginning shipment under the second order.

2. The question as to whether the payment for five carloads at $5.10, under the second contract, was a waiver, should have been determined by the jury, and if they found that the consignee had, in fact, waived the terms by knowingly acquiescing in and ratifying the shipment of five cars at the higher priced invoice, to that extent the seller would be entitled to modification of its first order.

Judgment of the court of appeals reversing the court of common pleas, affirmed, and judgment of the court of appeals rendering- judgment for the defendant in error reversed.  