Love v. Barnesville Manufacturing Co.

Citations

• 19 Del. 152
• 3 Penne. 152
• 50 A. 536
• 1901 Del. LEXIS 6

Syllabus

<p>Assumpsit—Contract—Evidence.—Six Witnesses to a Fact—S<xle of Goods—Sample—Non-delivery—Refusal to Accept—Inspection— Buying in Open Market—Damages—Damage , Caused by Act of God—Epidemic of Sickness—Reasonable Time—Question for Jury—Question for Court.</p> <p>1. When six witnesses have testified to a single fact, other witnesses, even though they be experts, cannot be examined as to the same fact. Counsel must elect what kind of witnesses he will call.</p> <p>2. In an action for damages for the non-deliveiy of goods according to contract, the plaintiff must show a breach of the contract, either that the goods were not delivered, or that they were not according to sample.</p> <p>3. The defendant would not be liable for damages caused solely by the act of God, such as an epidemic of sickness in the defendant’s factory, in the absence of its undertaking to do so.</p> <p>4. The true measure of damages in an action for the non-delivery of goods according to contract, is the difference between the contract price and the price of the goods in the market at the time they were to be delivered under the contract.</p> <p>5. When goods are sold by sample, the purchaser, has a right to examine, inspect and make a through test as they are delivered and to take such possession thereof as may be necessary, to ascertain whether they are according to contract.</p> <p>6. If goods sold are not according to sample, the buyer at his option, may return the goods to the seller; or may notify the seller of non-acceptance, and that the goods are held subject to his order. Every sale by sample carries with it an implied warranty that the goods when delivered shall be according to sample; and that they are fit for the use for which they were sold. A buyer may accept such goods as are according to sample, and reject such as are not.</p> <p>7. During the continuance of a contract, the unqualified acceptance by the seller of payments after the time stated in the contract, is a waiver as to tim