
    No. 591
    C. & O. R. R. CO. v. PITT. STEEL CO.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2770.
    Decided Mar. 8, 1926
    1255. WARRANTY — When there are no express words of warranty in a contract the acceptance by the vendee of the goods waives any right of action which he may have for defective goods.
    Attorneys — Galvin and Tracy for the C. & O.R. R. Co.; and DeCamp, Sutphin & Brunleve, and J. M. Stoner & Sons for Pitt. Steel Co.; all of Cincinnati.
   This action was brought in the court by the Foundry Co. tc recover money on account for steel frames which they had delivered to the R. R. Co. It appears under the orders given, 738 steel frames were made and delivered by the Foundry Co., and 339 were rejected by the R. R. Co. as defective; the balance due was on these alleged defective frames and the R. R. refused payment. The jury in the court below found for the Foundry Co. and error is prosecuted here by the R. R. Co.

The order received by the Foundry Co. for the frames from the R. R. Co. contained among other instructions that the frames should be passed upon by the R. R. Co. inspectors, all of the frames were passed upon by the R. R. inspectors as all right.

The R. R. contended below and contends here that under the contract there was an express warranty of quality, and that this warranty survived their inspection acceptance.

The Foundry Co. contends that there was no question of warranty, that the contract provided how they should be made and inspected and when they had made the castings and they had passed inspection and been delivered, it had completed its part of the contract.

The Court of Appeals held:

1. Where goods are made according to specifications furnished -by the buyer, no express warranty survives inspection and acceptance.
2. “By an executory contract for sale and delivery of chattels of described grade and quality, the seller becomes bound to- deliver goods of character described but in the absence of express terms of warranty no obligation is imposed upon him which survives the acceptance”. 70 OS. 16.
3. Our conclusions are that there was no express warranty and therefore there was no obligation upon the Foundry Co. which survived the acceptance by the R. R. Co.  