
    No. 690
    CARSON v. CADWALLADER
    Ohio Appeals. 7th District, Columbiana Co.
    No. 294.
    Decided Dec. 3, 1925
    Judges, Washburn, Pardee and Funk of the ninth district sitting.
    1063. SALES — 1. Purchaser on discovery of shortage may keep goods, and maintain action for such shortage.
    2. Notice of such shortage must be given vendor within a reasonable time after discovery.
    3. Action is for breach of contract, not fraud.
    4. Three years not such reasonable time as would permit purchaser to institute and maintain action.
    Attorneys — Metzger and McCarthy, for Carson; K. L. Cobourn, for Cadwallader; All of Salem.
   AYASHBURN, J.

B. F. Carson, on Feb. 13, 1919 entered into a contract with Thos. Cadwallader, whereby the said Carson was to purchaser from Cadwallader a certain manufacturing plant together with raw and finished material on hand, there being no inventory made of such material.

Possession was to be given on April 1, 1919 and in the meantime Cadwallader was to operate said plant, he agreeing to turn over on said date an amount of raw and finished material equalling the amount when the contract was made.

Delivery was made on April 1, and thereafter Carson operated said plant. He continued to operate said plant, and made payments on the purchase price for about three years. When the last payment became due he asserted that quantity of goods turned over on April 1st was less than the quantity on hand at date of contract, claiming to have discovered this shortage soon after taking over the plant. He brought this action to recover value of said goods. Columbiana Common Pleas rendered judgment in favor of Cadwallader. The Court of Appeals in error proceedings held:

1. This action is based upon a breach of contract and not on fraud or misrepresentation.
2. Purchaser, under 8449 GC., may keep goods and sue to recover for shortage.
3. Notice of such shortage must be given with a reasonable time after discovery. (8429 GC.)
4. Three years in not such reasonable time as will enable purchaser to maintain action for breach of contract.  