
    No. 853
    LUBIN et v. KING MILLS CO.
    No. 19982.
    Supreme Court
    On motion to certify.
    Dock. July 16, 1926;
    4 Abs. 493.
    1063. SALES — Where flour is sold without any guaranty of the quality and ingredients of said flour, may a party defend an action upon an accocnt, of which the flour is the subject, on the ground that the gluten content has been removed and it was therefore unlit for the baking of bread?
    Attorneys — Turney & Sipe for Lubin et; Snyder & Snyder for Company; all of Cleveland.
   This action was brought originally in the Cuyahoga Common Pleas by H. H. King Flour Mills Company against Meyer Lubin and Harry Golenty upon an account the subject of which is flour sold to the plaintiffs in error.

It appears that Lubin and Golenty were flour salesmen who sold this product to millers and bakers.

Lubin and Golenty defended the suit on the ground that the gluten content of the flour had been removed by the process which the company used in making the flour and that it was therefore unfit for making bread. It was further contended that the company being a foreign corporation and not qualified to do business in Ohio, has done business by this transaction and is therefore not entitled to any relief.

Judgment of the Common Pleas in directing a verdict for the company whs affirmed by the Court of Appeals.

The plaintiffs in error contend:

1. That the court erred in directing a verdict under the evidence produced.

2. That this action may not be maintained because the company has not qualified itself to do business in Ohio.

3. That the fact that the flour is not fit for the baking of bread is a good defense.  