
    Star Lubricating Oil Works v. A. D. White.
    [Filed May 18, 1892.]
    Sale: Breach of Warranty: Waiver. In an action upon an account for oil the answer was, in substance, that the goods were of au inferior quality and a warranty. It appeared that a considerable part of the oil had been returned and accepted ; that oil of the value of $26.05, to which no objection had been made, had been retained; that $5.39 had been paid on the account, in addition to the amount sold from the barrels returned. Held, That a verdict for the defendant would not be sustained.
    Error to the district court for Boone county. Tried below before Tiffany, J.
    
      Charles Riley, for plaintiff in error,
    cited; Williams v. State, 6 Neb., 340; U. P. R. Co. v. Ogilvy, 18 Id., 643; Steele v. Russell, 5 Id., 216; Milton v. State, 6 Id., 144; Ballard v. State, 19 Id., 617; 1 Parsons, Contracts, 592 and cases, 593; 2 Kent, 480; Benjamin, Sales, see. 900; Milner v. Tucker, 1 C. & P. [Eng.], 15; Rutter v. Blake, 2 H. & J. [Md.], 353; Reed v. Randall, 29 N. Y., 358; Hopkins v. Appleby, 1 Stark. [Eng.], 477.
    
      Albert & Gondring, contra,
    
    cited: Murray v. School Dist., 11 Neb., 438; Aultman v. Stout, 15 Id., 592; Muller v. Pho, 14 N. Y., 597.
   Maxwell, Ch. J.

This action was brought on an account, as follows:

One barrel of white castor machine oil, 52J gal., at 38c..................................................... $19 95
One barrel sperm machine oil, 52J gal., at 30c...... 15 45
One barrel lardoline, 51J gal., at 30c................. 15 45
One barrel castor machine oil, 54 gal., at 24c........ 12 96
Two barrels of W. Va., 52J and 53|, at 10c...... 10 60
One-half barrel of Buckeye harness oil, 29 gal., at 55c.....................................................$15 95
One 30-gallon tank, free, one-half package......... 75
$91 11

On this account there is credited by the plaintiff' $5.39 and $41.64 for oil returned, the items of credit being as follows:

“Oil Works.
Mr. A. D. White, St. Edwards, Neb. — Dear Sir : We this day credit your account as follows:
17J gal. white castor machine oil, at 38c.............. $6 65
28 gal. Buckeye harness oil, at 55c.................... 15 40
34 gal. castor machine, at 24c........................... 8 16
38 gal. sperm oil, at 30c................................. 11 40
One-half barrel............................................ 75
$42 36
Less freight, 12c, and cartage, 60c..................... 72
$41 64
“ (Signed) Star Lubricating Oil Works,
Per S. E. L”

On the trial of the cause in the court below the jury returned a verdict for the defendant, upon which judgment was rendered. There is no dispute about the prices charged being the actual value agreed upon, the claim being that the oil was warranted to be of good quality, which it was not, and hence that the amount of oil for which credit is given was returned to the plaintiff and accepted by it. There is some dispute, however, as to the amount drawn from the barrels returned to the plaintiff, and that is a question for a jury, but there are some points upon which there is no controversy. It will be observed that the defendant retained one barrel of lardoline oil of the value of $15.45, and two barrels of W. Ya. of the value of $10.60. These items amount to $26.05, upon which, according to his own testimony, he has paid but $5.39. He is still indebted for the balance of this sum at least. It may be said that the defendant has sustained damages to his business by reason of the inferior character of the oil, and therefore that he should recover. . It is sufficient to say that the answer raises no issue of that kind and therefore it cannot be considered. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.  