
    HOLTZINGER et v. CAITO
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8995.
    Decided Oct. 8, 1928.
    
      White, Cannon & Speith, Cleveland, for Holtzinger et.
    Sol Edgert, Cleveland, for Ciato
   VICKERY, J.

The writer of this opinion would agree with this proposition if that was all that there was to it. Apples, especially in the month of June, necessarily taken out of cold storage, if left to stand on a track for seven days after they arrive would be not accepting or rejecting them in a reasonable time, and the man to whom they were shipped would be responsible for it, if it was because of neglect, but the record does not show that state of facts. It shows that the shipping company had an agent here and Caito immediately took the matter up with him and the subsequent actions between this agent and his principals, the brokers, was the reason for the delay, and until that matter was settled, the defendant in error had no real ground to reject these apples. As soon as it was made known that the brokers refuted any overtures on his part, nowithstanding he had reported that they were defective and that they would make no allowance, he then rejected the apples and the loss that attended it was because of the neglect of the brokers, or the refusal of the brokers to make a proper allowance, and thus warranting the defendant in error in rejecting the apples. The mere fact that he accepted one car out of three, has nothing to do with the case in hand.

Sullivan, P. J. and Levine, J„ concur.  