
    The List & Son Company v. Chase.
    
      Averment of contract performance by plaintiff — Error to charge jury■ — Burden of proof on defendant — Proof of same must be submitted, when — Purchaser rejects goods for assigned reason— Other reasons not stated not construed as zvaiver, when — i Law of contracts — Allegations and evidence of breach.
    
    1. Where a plaintiff sets forth in his petition a contract with the defendant, and avers that he has performed all of the conditions on his part, and the defendant for answer denies the allegations of the petition and alleges a contract differing in material conditions from that alleged by the plaintiff, the burden remains with the plaintiff to prove the contract and his performance as alleged in his petition; and it is error for the court to charge the jury that as to the claim made in the defendant’s answer the burden is on the defendant, and that the contract as alleged in the answer and denied in the reply must be made out by a preponderance of the evidence.
    2. Waiver of the performance of conditions in a contract by the party in whose favor the conditions are to be performed, is not performance but must be alleged as an excuse for nonperformance, before proof of such waiver can be received; and in the absence of such an allegation it is error to charge the jury that certain facts appearing in evidence constitute such a waiver. Eureka Fire & Marine Ins. Co. v. Baldivin, 62 Ohio St., 368, approved and followed.
    3. When a purchaser of goods has absolutely rejected the goods for any assigned reason, his silence as to other objections which would justify his refusal to accept, when unaccompanied by conduct which may have misled and prejudiced the ve. lor, cannot be construed as a waiver of the purchaser’s right to insist on his plea of non-performance on those grounds,
    (No. 10831
    Decided March 9, 1909.)
    Error to the Circuit Court of Morrow county.
    The defendant in error, Dart L. Chase, commenced an action in the court of common pleas of Morrow county against the plaintiff in error a corporation, alleging, in substance, that the plaintiff in error, on or about the 6th day of June, 1906, agreed to purchase from the plaintiff, 'defendant in error here, one hundred and ninety-five dozen of eggs, which were to be shipped to Cleveland, Ohio, to the defendant company, and that the plaintiff duly performed all the conditions of the contract of sale on his part, and that the defendant without cause refused to accept and pay for the said eggs or any part thereof, and that subsequently the plaintiff went to Cleveland and sold the eggs at the best price which could be obained therefor, and prays judgment for the balance. The defendant answered, in substance, that it denied each and every allegation contained in the petition of the plaintiff; and further answering said, that on or about the 6th of June, 1906, it agreed to purchase from the plaintiff about seventy-five cases of strictly fresh eggs, to be shipped not later than June 7, 1906, over the C. ,C. C. & St. L. railroad, and subject to inspection and approval by the defendant upon the arrival of said eggs at Cleveland, and if found to be of the standard purchased the defendant was to pay the plaintiff fifteen and one-half cents per dozen; that said plaintiff did not ship the eggs on the 6th day of June, 1906, but that on or about the 9th day of June, he shipped to the defendant one hundred and ninety-five cases of eggs via the Toledo & Ohio Central railway and the B. & O. railroad, and that upon arrival at Cleveland and inspection by the defendant, they were found to be not fresh and the defendant refused to accept them and immediately notified the plaintiff of its refusal; that the plaintiff authorized the defendant to sell the same for him, but on account of the bad quality of the same the defendant could not do so at the price asked by him, and thereupon at the suggestion of the defendant the plaintiff came to Cleveland and disposed of said shipment. The plaintiff in reply admitted that on the 6th of June the defendant agreed to and did purchase eggs of the plaintiff, and that on the 9th of June, 1906, the plaintiff shipped to the defendant one hundred and ninety-five cases of eggs by way of the Toledo & Ohio Central railway and the B. & O. railroad, and that the defendant- refused to accept them, and that plaintiff went to Cleveland and disposed of said shipment, but he denies each and every other allegation and statement in the answer contained. On the trial in the court of common pleas, verdict was rendered for the plaintiff, and after a motion for- a new trial which was overruled, judgment was rendered upon the verdict, which judgment was affirmed by the circuit court, and The List 6 Son Company now seeks to reverse the judgments of the circuit, court and court of common pleas.
    
      Messrs. Bemis & Calfee, for plaintiff in error.
    A party will not be held to have waived a material term of a contract, unless he intends and consents to do so. Express Co. v. Express Co., 7 Dec. R, 51; Insurance Co. v. Gierl, 9 O. C. D, 162; Bates, Flavens & Co. v. Benninger, 13 Dec. Re, 1073.
    It can be readily seen that the result of the ruling of the court below would be to practically deprive a man of his right of inspection, for such right of inspection would be of very little value, if by its exercise, a party should be held to lose by waiver, all the rest of his rights under the contract.
    If the contract be, as plaintiff contends, for a carload, the defendant was not bound to accept a lesser number of eggs than the contract called for. Mechem on Sales, 1161; Perry v. Iron Co., 16 R. I, 318; Hill v. Heller, 27 Hun, 416; Hart v. Mills, 15 Mees & Weis, 85; Elsas v. Meyer & Co., 10 Dec. Re, 518.
    
      Regardless, whether or not plaintiff in error as a matter of fact, waived any of his rights in this contract; that question was not in issue. The court erred, therefore, by directing the jury to consider that point. Mehurin & Son v. Stone, 37 Ohio St., 49.
    Where a party avers that he has performed all the conditions of a contract to be by him performed, his proofs upon the trial must show such performance in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in the pleadings. Insurance Co. v. Baldwin, 62 Ohio St., 368; Insurance Co. v. Campbell & Talbot, 42 Neb., 208; Anders v. Insurance Co., 62 Neb., 585; Gillett v. Insurance Co., 53 Kans., 108; Hannan v. Greenfield, 36 Ore., 97; Building Assn. v. Insurance Co., 29 Ore., 569; Lumbert & Co. v. Palmer, 29 la., 104; Closz & Mickelson v. Miracle, 103 la., 198; Heusinkveld v. Insurance Co., 95 la., 504, 96 la., 224.
    The circuit court below in its opinion seemed to base its decision on the ground that plaintiff in error objected to the eggs solely on the ground of quality using the words “eggs won’t stand inspection,” and that by assigning a specific ground of rejection it waived the right to reply on other grounds, i. e., quantity and route.
    To rebut that theory of the circuit court, however, it is only necessary to cite the following: Levy v. Green, 1 Ellis & Ellis, 968; Bryant v. Thesing, 46 Neb., 244; O’Donohue v. Legett, 55 Hun, 607, 134 N. Y, 40.
    
      
      Messrs. Harlan & Wood, for defendant in error.
    There could be no prejudicial error in the charge of the court as to waiver, as the court had the perfect right to order the pleadings to be amended to conform to the proof. Mehurin & Son v. Stone, 37 Ohio St., 58; Accident Assn. v. Harrington, 10 C. C., "N. S., 134; Insurance Co. v. Penn, 5 N. P., N. S., 547.
    Where a variance between the allegations of the pleading and proof is not material within the meaning of Section 131 of the code, the fact that the pleading was not amended to conform to the proof, as provided for by Section 132, will not constitute ground for the reversal of the judgment on error. Sibila v. Bahney, 34 Ohio St., 399; Insurance Co. v. Baldwin, 17 C. C., 143.
    In support of the proposition that the court had the right to submit the case to the jury upon the evidence introduced, notwithstanding the state of the pleadings, we cite the following authorities: Brockway v. lezvell, 52 Ohio St., 197; Mehurin & Son v. Stone, 37 Ohio St., 58.
   Davis, J.

The plaintiff alleges that the defendant entered into a certain agreement for the purchase of eggs. He alleges that he has performed all of the conditions of the contract to be performed on his part. The defendant by a general denial disputes both of these allegations and thereby imposes on the plaintiff the burden of proving the contract as alleged and substantial performance thereof on his part. But the defendant admits that it entered into an agreement to purchase eggs from the plaintiff, which however differs from the plaintiff’s version of the agreement in quantity, quality and route of shipment. The statement in the answer, of the facts as claimed by the defendant, does not constitute a distinct or affirmative defense, nor is it. a confession and avoidance. It is in effect a denial in particular of the contract and performance alleged in the petition; so that the burden of proof nevertheless remains with the plaintiff, as already stated, and it is not changed by the reply, which really adds nothing to the issues already made by the petition and answer, except the admission that the eggs were not shipped by the route by.which the defendant claims that the plaintiff agreed to ship them, but were shipped by what appears to have been an indirect and longer route.

Upon the trial in the court of common pleas, when instructing the jury and after stating the defendant’s claim, the court said: “As to this claim, the burden is on the defendant, and it must be . made out by a preponderance of the evidence, as it is denied by the reply. This claim of defendant assumes the same relation affirmatively, as the claim of the plaintiff.” For the reasons already stated this instruction to the jury was erroneous. 9 Cyc., 735, n. 91 and 92; Sorenson v. Townsend, 77 Neb., 499; Fudge v. Marquell, 164 Ind., 447, 455; 1 Ency. Pl. & Prac., 818; Mehurin v. Stone, 37 Ohio St., 49; Brewing Co. v. Schultz & Hall, 68 Ohio St., 407. If the evidence for the plaintiff’s claim is not sufficient to overcome the defendant’s denial and the evidence to support it, the jury are not authorized to find a verdict for the plaintiff. The importance of a correct application of these principles is apparent, since it appears from the record that the only evidence to support the plaintiff’s version of the contract was the testimony of the plaintiff himself and the only evidence to support the defendant’s claim as to the quantity and quality of eggs to be delivered and the route over which the)' were to be shipped was the testimony of the defendant’s agent who negotiated for the purchase.

In submitting the case to the jury the court swept aside all questions as to the quantity purchased and as to the route by which the eggs were to be shipped, as follows: “If you find that defendant after the bill of lading was sent and received, showing by what railroad route the eggs were shipped, and also the bill of eggs showing the number of cases, and made no objection on that account until after an inspection of the eggs, the defendant would waive any question as to the number of cases, as well as the railroad route by which they were to be shipped.”

A waiver is a voluntary relinquishment of a known right. It may be made by express words or by conduct which renders impossible a performance by the other party, or which seems to dispense with complete performance at a time when the obligor might fully perform. Mere silence will not amount to waiver where one is not bound to speak. In this case the goods were perishable and exceedingly liable to be damaged by heat. The shipment was in the month of June and therefore the shortest and speediest route was a material condition. It is true that if the contract bound the plaintiff to ship by such a route, the defendant might have rescinded the contract on receiving the bill of lading showing a shipment on another and more hazardous route; but he was not bound to do so then. He might wait until inspection because inspection might show that the goods were not damaged, and he could then accept them or if damaged reject them. The purchaser therefore waived no right by waiting and the seller lost none, because the latter had already made a breach of his contract and could not remedy it/ The same was true as to the quantity of eggs purchased. The purchaser was at liberty to accept all the eggs shipped to it, although in excess of the amount which it agreed to buy, or it might have accepted out of the excessive shipment the quantity which it agreed to buy; but it was not bound to do either. Mechem on Sales Section 1157-1161, and when it rejected the whole shipment it did not put the plaintiff in any worse position, for upon the hypothesis that the contract was as defendant claims, the plaintiff had already failed to perform his part of the contract.

The theory of plaintiff’s counsel and of the courts below, that because in a telegram to plaintiff the defendant assigned only one ground for refusal to accept, viz., that the eggs “did not stand inspection,” it waived all other grounds it might have, is not tenable. We do not deny that under some circumstances a refusal to accept goods for a stated reason may operate as a waiver of other objections, which might have been properly made. This may be so in cases where the silence of the purchaser and his conduct operate to mislead the seller and prevent him from protecting himself, in other words, where the conduct of the buyer' would raise an estoppel against him. See Johnson v. Oppenheim, 55 N. Y., 280, 291; Smith v. Pettee, 70 N. Y., 13, 16-17. But when the buyer has absolutely rejected the goods, for whatever reason, his silence as to other objections which would justify his refusal to accept, when unaccompanied by conduct which may have misled and prejudiced the vendor, can not be construed as a waiver of the buyer’s right to insist on his plea of nonperformance on those grounds. The reason which underlies this proposition is that a waiver must be voluntary, that is intentional, with knowledge of the facts and of the party’s rights, or it must be implied from conduct which amounts to estoppel. Therefore, since it does not appear in this case that the defendant, when it notified the plaintiff that it refused to accept the eggs for-inferior quality, intended to waive objections as to quantity and change of route; or. that the failure to notify plaintiff of those objections in any material way misled or prejudiced the plaintiff, a waiver of such objections can not be implied.

Moreover, the plaintiff stands upon his averment that he has performed all the conditions precedent on his part. If he would show a waiver of conditions he must aver it as an excuse for nonperformance of such conditions. Eureka Fire & Marine Ins. Co. v. Baldwin, 62 Ohio St., 368. The court went outside of the issues to tell the jury that non-performance of certain conditions was waived. This was an error and it could not be corrected, as suggested by counsel, by amending the petition to conform to the facts proved, because the facts proved do not constitute a waiver.

The judgments of the circuit court and the court of common pleas are

Reversed.

Crew, C. J., Summers, Spear, Shauck and Price, JJ., concur.  