
    The Liggett Bros. Coal Co. v. Payne.
    
      Breach of warranty — Question for jury — Notification of breach within reasonable time — Recovery of damages not precluded by payment, when.
    
    
      1. Where defendant, in an action for goods sold and delivered, counterclaims for breach of warranty, the question whether the defendant notified plaintiff of the breach within a reasonable time after he Knew lor should have Known of it is one of fact for the determination of the jury where reasonable minds may draw different conclusions from the probative facts.
    2. In such an action the defendant is not precluded from recovery of damages for breach of warranty, 'by the fact that he has paid for most of the-* goods purchased.
    (Decided November 26, 1923.)
    Error: Court of Appeals, for Butler couuty.
    
      Messrs. Shank <& Shank, for plaintiff in error.
    
      Mr. P. P. Boli, for defendant in error.
   Cushing, J.

This action on an account was begun by the coal company in the municipal court, in the short form under the statute, and taken on appeal to the Court of Common Pleas.

The amount claimed was $202. The answer was a general denial, and by way of cross-petition defendant counterclaimed for a breach of warranty on seven cars of coal that she claimed she purchased as. Cannel coal, at $7.50 a ton; and claimed that, by reason of the breach of warranty, she was damaged in the sum of $1,000.

The plaintiff’s reply was. a general denial.

The coal was purchased beginning November 5, 1920, and delivered at intervals thereafter, covering a number of days. The coal was unloaded at Hamilton in the yard of the defendant, and with the exception of a car, of run of mine coal, all the coal was placed in one stack. Defendant began selling the coal from this pile the last of December. ISoon after its delivery, the customers rejected and returned it. She then tested it in her own home, and found that the outside would bum, but that the bulk was composed of shale and clay, and would not bum. She called on the officers of the plaintiff company about January 12, and on several occasions thereafter, but was unable to see them until the first or second of February.

The question for determination is whether the defendant notified the plaintiff of the breach of warranty within a reasonable time after she knew or should have known of the breach of warranty.

The plaintiff claims that the question as to whether or not such notice was given within a reasonable time was one of law for the court. The defendant claims that it was a question of fact to be determined by a jury.

The Court of Common Pleas at the trial of the case held that it was a question of fact for the jury, and submitted it under an instruction that dearly and fully presented the question.

The jury found for the defendant, and this action is prosecuted to reverse that judgment.

In the case of Marmet Coal Co. v. People’s Coal Co., 226 Fed., 646, 651, the court held:

“Again, unless defendant gave notice of the alleged breach within a reasonable time after it knew of it, defendant has no right of action and no defense. Ohio Code, Section 8429'. True, the question whether delay is reasonable or unreasonable is usually one of fact, and always so where reasonable minds may draw differing inferences from the probative facts; yet where the facts are undisputed, and there is no room, for differing inferences, the question becomes one of law. International Corporation v. Stadler (C. C. A., 6), 212 Fed., 378, 382, 129 C. C. A., 54.”

Counsel for plaintiff claim that the defendant, having paid for most of the coal, could not recover damages on a breach of warranty, basing their claim on the theory that after payment the defendant could not rely on the breach of warranty, and cite the case of Boviard & Seyfang Mfg. Co. v. Maitland, 92 Ohio St., 201. That case does not support that contention. In that case there was a settlement between the parties, and the court held that after settlement it was too late to raise the question of a breach of warranty.

In this view of the law, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Buchwalter and Hamilton, JJ., concur.  