
    The Allen Buggy Company v. Bush.
    April 29, 1895.
    Brought forward from the last term.
    Complaint on account. Before Judge Griggs. Miller superior court. April term, 1894.
    Plaintiff' sued Bush upon an account for four buggies. He pleaded not indebted, and there was a verdict in his favor. Plaintiff’s motion for a new trial was overruled. The motion alleged, among other grounds, that the verdict was contrary to law and evidence. The evidence for plaintiff was: Plaintiff sent defendant circulars and papers, and when defendant ordered by letter the four buggies in question, he enclosed to plaintiff in the letter the slip of paper referred to in his letter, which contained on the front side of it the picture of a buggy under which was printed the words “No. 20 Empire Buggy,” and on the reverse side a description of the. buggy, which did not state the number of spokes to the wheel, and stated that the wheels were strictly “B” grade, Sarven patent, or compressed banded hubs; and further stated that in ordering, the width of -the track should always be stated, and when nothing was said, plaintiff always sent four feet eight inch. In response to this letter from defendant, plaintiff shipped four buggies, which, according to the evidence for the plaintiff, were the buggies which had been ordered. Plaintiff never authorized defendant to reship, but defendant did have the buggies reshipped to plaintiff, and plaintiff has at all times refused to take them back, and could not receive them back without sustaining great loss. Plaintiff ordei’ed him not to reship them, but it does not appear that this order was given before the goods were reshipped.
   Lumpkin, J.

The evidence demanded a verdict for the plaintiff; and therefore the finding for the defendant was contrary to law, and a new trial ought to have been granted. Judgment reversed.

The testimony for defendant was: He ordered the buggies by the picture; he had been in the business for a number of years, and could look at the picture of a buggy and tell what kind of hubs it had; the picture represented the buggy with patent hubs with 16 spokes to the wheel; the buggies shipped had not those patent hubs, had only 14 spokes to the wheel (which makes a wheel much weaker than one with 16 spokes), and were narrow gauge, that is, had 4 feet 8 inch track, and were not reasonably suited to the purposes for which they were intended. The buggies shipped him had jogged spokes and wooden hubs unbanded. "When they arrived at Arlington, the railroad agent would not let him have them out to examine until he paid the freight; he paid the freight on them and began putting one of them up, and when he found that they were not the buggies he had ordered, he went to the railroad agent, got back the money he had paid as freight, delivered hack the buggies to him, and told him to ship them to plaintiff. He did not know what a Sarven patent hub was; he did not get the buggies he had ordered; he thought he had ordered broad gauged buggies; he ordered them as cheap buggies; a good first class buggy costs from $150 down to $35 (the buggies in question were ordered at $34.20 each). The buggies came up to all the statements in the circulars, as far as he knew, except that they did not have the patent hub shown in the picture, and did not have 16 spokes as shown in the picture. He had no direction from plaintiff to reship, but reshipped the buggies before hearing from plaintiff.

R. H. Powell & Son, for plaintiff.

A. L. Hawes and I. A. Bush, for defendant.  