
    No. 345
    GOFF-KIRBY COAL CO. v. FUEL CORP. OF AMERICA
    Ohio Court of Appeals, Eighth Dist.
    No. 4309.
    April 16, 1923
    This opinion has not been published except in Abstract
    SALES — Deficiency in quality of coal ordered — ER ROR — Judgment against manifest weight of evji dence. |
    Middleton, P. J., Sayre and Mauck, JJ., Fourth Dist., Sitting
    Error to the Cleveland Municipal Court
    Judgment Reversed
    . Attorneys- — C. F. Taplin and.E. L. Baker, for Coal Co.; A..'.W. Heinrich,'Contra.
   BY THE COURT.

Epitomized Opinion

There was no error in continuing the case in tht trial court for the purpose of hearing additional evidence. Moreover, such continuance was not prejudicial to any of the rights of the plaintiff in erroir but on the contrary, it resulted in the submissiolp by the plaintiff in error, of important and materia,! evidence favorable to its claim. While on the whols evidence, it appears that the coal in controversy wajs considerably below the standard quality of mine run coal from Pool 34, it is clearly shown that ai least two cars of the four involved here did not contain the kind of coal ordered, but came from a mine classified as Pool 44, which, it is admitted, wafe of • a poorer quality. This fact alone, entitled the plaintiff, in. error to refuse to pay the contract price for the same, and it should be held to account only for its reasonable value, which the evidence showfe was about $1.50 per ton. • )

Judgment reversed for the reason that.it is against; the manifest weight of the evidence, and' case re4 manded to, the Municipal Court for .further proceedings -according to law. ; : ’. v i  