
    No. 542
    PEERLESS PAPER BOX MFG. CO. v. LaBOITEAUX COMPANY
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4362.
    Decided May 7, 1923
    This opinion has not been published except in Abstract.
    SALES — (I) Judgment of the lower court correct as to the amounts delivered under the contract — (2) Express agreement as to quantity cannot be altered by custom.
    Attorneys — Mooney, Hahn, Loeser & Keough, for Peerless Paper Box Mfg. Co.; Day, Day & Wilkin, for LaBoiteaux Co.
   VICKERY, P. J.:

Epitomized Opinion

This is an action for the purchase price of 400 bundles of paper. A written order was taken for the goods in which the amount specified was 300 bund’es. No time was specified for delivery. After 400 bundles had been delivered, the defendant refused to pay for the merchandise. The plaintiff then sued. The defendant claimed the goods were to »hipped within two weeks and that only 300 les had been ordered. The plaintiff contended no specific time for delivery was specified in the written order and moreover that under a custom or usage common to that line of business the defendant was liable for the 499 bundles delivered. The case was tried before Judge Terrell of the Municipal Court of Cleve1 and and resulted in a judgment in favor of plaintiff for the purchase price of the 400 bundles. Defendant prosecuted error. In modifying the judgment the Court of Appeals held:

1. That as no specific time of delivery was set forth in the written order and as there was insufficient evidence to warrant the finding that there was an oral agreement to that effect, it must be held that the delivery was to be made within a reasonable length of time and that it was incumbent upon the defendant to accept the goods and pay for them in accordance with the contract price.

2. As the contract was for 300 bundles, by no stretch of the imagination could there be a custom which would warrant the extension of an agreement to 400 bundles, and therefore the court erred m admitting evidence of such a custom.

Judgment modified.  