
    Robert Creighton v. Cornelia Comstock et al., Administrators of John K. Comstock, Deceased.
    1. In sales of personal property, if the articles delivered fall so far short of the quantity bargained for as to authorize a rescission of the contract, for partial failure of consideration, the vendee may recover damages1 for the deficiency.
    2. The words “more or less” may cover a variation that is unimportant in amount, but not such a deficiency as exists in this case — of 23,000 feet of lumber sold, the amount paid being a fair price for that quantity, and but 16,000 feet delivered.
    8. A mere delay of six months in bringing suit, or in notifying the opposite party of the deficiency, is not, of itself, waiver of a claim for damages.
    
      4. Payment of a note given for articles of personal property, the note having passed into the hands of an innocent holder for value, before due, without" notice, does not bar the right to damages for breach of the contract of sale, in an action brought by the maker of the note, who was-the purchaser of the personal property.
    Error to the District Court of Hamilton county.
    There are two causes of action set forth in the petition. The first alleges that on or about the 3d of February, 1865, the defendant, John K. Comstock, sold the plaintiff, Creighton, three floats in a raft of pine timber, Creighton having previously taken one float out of the same raft; that Comstock represented that there were three floats, the ice and snow at the time of purchasing preventing any accurate measurement; that in point of fact there were but two floats, instead of three, and that Comstock, therefore, received one-third more money than he ought to have received, together with a small amount for difference between pine and hemlock timber, not now material to be considered. On this 'cause of action plaintiff' claims to recover $1,296.72. For a second cause of action, Creighton says that upon the same date, February 3, 1865, he bought of Comstock a raft of hemlock timber for $300, and paid for it. That defendant, Comstock, was to be responsible for the safety of said raft, and if lost by high water or casualty, the loss was to fall upon Comstock. That it was so lost, and plaintiff ■therefore asks to recover back said $300.
    A judgment is asked by Creighton for $1,596.72, and interest from February 3, 1865
    The answer is as follows :
    “ The defendant, for answer to the petition of plaintiff, .■says that he is not indebted to said plaintiff in any sum as therein charged. He denies that he sold and delivered a •.float out of a raft of timber to the said plaintiff, but avers that the said plaintiff used said floats without the authority ■of defendant. He denies that he made any representations in regard to said raft, but avers that the said plaintiff examined the same, and purchased without warranty and representations, but on prior inspection thereof; that no representations were made as to kind and quality, and that the said contract and sale were reduced to writing between the parties, and that the said timber was purchased for more or less by the plaintiff'.
    “ The defendant, in answer to the second cause of action, ■says that he denies that he sold plaintiff the timber therein mentioned; that it was agreed between the parties that plaintiff therefor should pay the party in charge for his ser■vices in taking charge of the same ; that no moneys came to plaintiff therefor, or that he made any representations in relation thereto, and denies that the defendant is indebted to plaintiff in any sum, and asks to be dismissed with his -costs.”
    The reply is:
    “ The plaintiff, by way of reply to the new matter set up in the answer of the defendant, says that it is not true, that the contract referred to in his first cause of action, was reduced to writing. He says that a contract by which defendant became liable to make good any loss of said timber by ice ■or high water was reduced to writing; but that no contract as to timber was written, except as herein already stated.”
    The contract referred to in these pleadings is this :
    
      “ Columbia, February 3, 1865.
    “ R. Creighton having this clay hot. from John E. Com-stock, supposed to-be twenty-three thousand feet white pine timber more or less, now laying in the river immediately under said Creighton’s logway in the Ohio river at Columbia, Ohio, for which said Creighton has this day paid to the said Comstock five thousand dollars ; as said timber is very much exposed and liable to be carried away by the ice or by the anticipated high water soon looked for in the Ohie river, it is therefore understood and agreed that the said Comstock is to refund to the said Creighton for all losses-sustained by way of loss in said timber after this dat one-account of a high flood or ice in the Ohio river, the losses if any to be assessed by the parties taking care of said timber and to be paid over by the said Comstock to R. Creighton without delay or litigation, the said Creighton agreeing' to use all due diligence in taking care of said timber.
    “ Witness, R. Creighton,
    “ G! G. Bradbury. J. E. Comstock.
    
      “ The interlineations made before signing.
    “R. Creighton,
    “ J. E. Comstock.
    “ U. S. revenue stamps to amount six cents affixed.”
    The words interlined are “ more or less,” written apparently by Mr. Comstock, and “ after this date,” written apparently by Mr. Creighton.
    With regard to the hemlock raft which Creighton bought for $300, it was verbally agreed that Comstock was to stand the loss if any occurred by reason of ice or high water.. This raft was lost .by high water about March 1, 1865.
    A verdict was rendered for defendants below, and the-case taken up on error.
    
      J. R. A. Johnson, for plaintiffs in error:
    On the question of failure of consideration, Benjamin on Sales, 310; Devaux v. Connally, S. C. B. 640; 1 Story on Cont. sec. 481, p. 585; 1 Parsons on Cont. 462; Upton & Co. v. Julian & Co., 7 Ohio St. 95.
    
      On delay of notice of deficiency and waiver, Benjamin on Sales, 685; Judd v. Dennison, 10 Wend. 513; Hodly v. Clinton County Insurance Co., 13 Ohio St. 502; 1 Parsons on Cont. 592, note k; Kellogg v. Denslow, 14 Conn. 411.
    
      Sage § Hinkle, also for plaintiffs in error,
    cited Gilbert v. Lewis, 1 De G., J. & S. 49; Attorney-General v. Corporation of Poole, 4 M. & C. 28; Marshall v. Sladden, 7 Hare, 442; Brumley v. Smith, 26 Beavan, 671; Kennedy v. Kennedy, 2 Ala. 604; 11 Ga. 410; 9 Pick. 218; 8 Mason & W. 871; 1 C. & M. 840; 2 Barn. & Adolf. 460; 41 N. Y. 488.
    
      J. G &¡ H. Douglass, and Caldwell, Coppock § Caldwell, for defendants in error :
   Wright, J.

Without going into the evidence at length, it is apparent to us that Comstock .sold twenty-three thousand feet, more or less, of pine timber; that upon measurement being made, at Creighton’s mill, there were only about sixteen thousand feet delivered, and the court very properly said, that if there was such a deficiency as this a recovery might be had; that the words, “ more or less,” could not extend to so great a 'difference, though they might cover an unimportant variation. It also appeared, from the evidence, that Creighton gave a note to Comstock, for $5,000, in payment for the timber; that Comstock got the note discounted, and transferred it, before maturity, for a valuable consideration, to an innocent holder. Creighton, under these circumstances, paid' this note. The court very properly charged that such payment did not bar Creighton’s right to recover for the deficiency of timber.

The court also charged the jury, “ That if they found', from the evidence, that the plaintiff, after discovering the deficiency in the quantity of the timber in controversy, sawed and disposed of it and failed to bring suit on account of the deficiency for six months or more thereafter, and had failed to show that he made a claim or demand of, or gave notice to, Comstock on account of such deficiency during that period, it may be considered as evidence of a ratification of the sale and a waiver of a claim for loss in quantity, and if you so find, the plaintiff would not be entitled to recover.” To which plaintiff then excepted.

This, we think, was calculated to' mislead.

The court did not, probably, mean to be understood as saying that a delay in bringing suit for six months was a waiver of the claim. Nor could they have meant that failing to give notice of the deficiency of the claim, for that length of time, was such waiver; and yet the jury, having their attention directed to the matter in this way, might have erroneously supposed such to be the law. The court say this might be “ considered as evidence of a waiver.” Doubtless there might be cases where, the issue being upon the question of waiver, delay in setting up a claim might properly be considered; but we find no such issue made in these pleadings. The answer does not make the slightest allusion to the subject, nor do we find in the record any evidence shoeing that the parties made this a material point. Certainly there is nothing to justify the assumption that any waiver had been made.

With regard to the second cause of action : This was to recover the $300 paid for the hemlock raft. Creighton paid to one Orr the amount; it appearing that Comstock was owing Orr, and was satisfied with this arrangement. It was, therefore, in fact, a payment to Comstock. This raft was to be at Comstock’s risk, and was lost by high water. Creighton had paid for it, and, in our judgment, was entitled to recover the money back; and upon what ground the jury proceeded, in ignoring the claim, we are unable to see. The answer to this second cause of action does not appear t‘o deny the allegations of the petition that Creighton bought, that the risk was Comstock’s, and that the raft was lost. The evidence sustains these allegations, and the right of recovery, to the extent of the sum paid.

It seems to be claimed, in argument, that this loss was in some way attributable to some negligence in Creighton, but this view is not sustained by the testimony.

Judgment of District Court and Common Pleas reversed, and cause remanded.

Scott, Chief Judge, Day, Johnson, and Ashburn, concurred.  