
    No. 114
    LIGGETT BROS. COAL CO. v. PAYNE
    Ohio Appeals, 1st. Dist., Butler Co.
    No. 215.
    Decided Nov. 26, 1923
    173. BREACH OF WARRANTY—What constitutes—When actionable—A question of fact for jury.
    Published only in Ohio Law Abstract
    Attorneys—Shank & Shank, for Coal Co.; P. P. Boli, for Payne; all of Hamilton.
   CUSHING, J.

Epitomized Opinion

This action was prosecuted in the Municipal Court by the Liggett Bros. Coal Co., against Jessie Payne, on an account in the short form for $202. The ■ answer was a general denial and Mrs. Payne by way of cross-petition, counterclaimed for a breach of warranty on seven cars of coal that 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 $1000.

The coal was purchased in Nov. 1920 and delivered to her yard, and she began selling it the latter part of December. Soon after, customers rejected and returned it, and on burning some, Mrs. Payne found that the outer surface would burn, but not the inner bulk. She called the office of the Coal Co. Jan. 12, and sometime thereafter, but she did not see them until Feb. 1921. Judgment in the Common Pleas was for Payne.

The questions for the Court of Appeals to determine were: ’

1.Whether Payne notified the Coal Co. of the breach of warranty |within a reasonable time after it became known.

2.The Coal' Co. claims that it is a question of law for the court while Payne contends that it is one of fact for the jury. (The Common Pleas Court had submitted it to a jury.)

3.The Coal Co. also contended that Payne had paid most of the price of the coal and could therefore, not recover on breach of warranty, citing Mfg. Co. v. Maitland, 92 OS. 201.

The Court of Appeals held:

The above case, 92 OS. 201, does not support contention of Coal Co. for in that case a complete settlement had been made.

Judgment of the trial court was affirmed on the ground that the question as to time was one of fact, and dependent upon determination of the jury.  