Columbia Weighing Machine Co. v. Smith , 26 Ohio App. 321 ( 1927 )

Upon the trial of this case in the court of common pleas, judgment was entered upon the verdict of the jury in favor of the defendant, B.B. Smith. The plaintiff below brings this proceeding in error and asks this court to enter final judgment in its favor.

The following undisputed facts appear from the pleadings, as well as from the evidence: May 12, 1925, the defendant purchased from the plaintiff a Columbia Mirror Weighing Machine. The agreement of purchase, which was in writing, provided that the purchaser might return the machine within thirty days from the date of arrival instead of paying the purchase price, that return shipment of the machine was to be made by freight only, to the address of plaintiff printed on the contract, and that, should the purchaser not ship it back to the seller within thirty days from its arrival, the full purchase price of $150 should be paid. The machine was received by the defendant May 25, 1925. He kept it and did not return it until July 15, 1925, or more than thirty days after its receipt. June 22, 1925, defendant wrote to plaintiff, in substance, that the amount taken in by the machine was not sufficient to warrant him in keeping it, that he had decided not to keep it, that he had mislaid his contract, and he requested the plaintiff to give him shipping instructions. At the opening of the trial the plaintiff filed a motion for judgment on the pleadings in his favor for the amount of the purchase price, and interest, and, after the verdict was returned, filed a motion for judgment notwithstanding the verdict. Both motions raised the same question. Baltimore Ohio Rd. Co. v. Nobil, 85 Ohio St. 175, 97 N.E. 374, Ann. Cas., 1913A, 1019. The motions were overruled and exceptions noted.

Under rule 3 (1) of Section 8399, General Code, where goods are delivered to the buyer with the privilege of returning them the buyer may revest title to the property in the seller by returning or tendering the goods within the time fixed in the contract, unless a different intention appears. In the instant case the contract provided for return of the machine to be made in a certain way, and the defendant could only avoid liability for the purchase price under the terms of the contract by complying with its terms and making return shipment within the period of thirty days by freight only. Such action he did not take, and he made no return or tender within the stipulated time. The writing of the letter was not equivalent to a tender, if a tender could be a compliance with the contract. The pleadings therefore show on their face that the defendant is liable to the plaintiff for the purchase price of the machine, amounting to $150, together with interest.

The judgment of the court below will be reversed, and final judgment entered for plaintiff in error for that amount and interest.

Judgment reversed and judgment for plaintiff in error.

RICHARDS and LLOYD, JJ., concur.