
    No. 517
    WOOD & SELICK CO. v. HUFFMAN CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1621.
    Decided March 8, 1926
    480. EVIDENCE — Parol evidence is admissible where averments show goods to have been sold by sample.
    Attorneys — Tracy, Champman & Welles, and Frank- M. Coburn and Frank H. Harrington for Wood & Selick Co.; Fraser, Hiett & Wall and Geo. E. Effler for Huffman Co.; all of Toledo.
   YOUNG, J.

This action grows out of an alleged contract for the purchase and sale of sugar by the John Huffman Co. from the Wood Selick Co. ;

The Huffman Co., it seems, gave an order for a carload of white sugar at a certain price. The sugar was delivered but refused by the Huffman Co. for the reason that it did not conform to- samples. The Wood & Selick Co., then offered to sell the sugar for less than the price formerly quoted and the Huffman Co. agreed to have the sugar taken from the car and stored pending its decision to accept said sugar while experiments were made with samples thereof to determine its adaptibility for use by the Huffman Co-.

At the conclusion of the test made with said sugar, the Huffman Co. notified the Wood & Selick Co. that the sugar was held subject to its disposal. The Wood & Selick Co. brought suit in the Lucas Common Pleas for the purchase price. Huffman Co. in its answer and cross-petition asked for the return of the money already paid by it. The jury rendered a verdict in facor of the Huffman Co.

Error was prosecuted and it was claimed that the court’s ■ permitting testimony on behalf of the Huffman Co-, in reference to samples produced by the Wood & Selick Co. at the time of giving the order, was error, on the ground that the alleged contract entered into between the parties made no mention of the fact that the surgar was purchased by sample. Error was also- assigned for the court’s allowing parol testimony because it varied the terms of a written contract. The Court of Appeals held:

1. Where a contract is ambiguous and is not susceptible of a reasonable construction without taking all surrounding elements into account, and where averments show goods to have been sold by sample, parol evidence is. admissible so that the rights of the parties may be determined.
2; The question whether this was a sale by: sample, and whether the sugar measured up ■ to the samples in color, grade, quality or was. free from defects claimed by the Huffman Co.,' were for the jury.
3. Exhibits and samples used at the trial' bear out the contentions made by the Huffman • Co. as to the condition of the sugar. Parol evidence for this reason, is admissible.
4. The issues having been-presented to the jury on the evidence and under a proper charge of the court, the verdict and judgment are correct.

Judgment affirmed.  