Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-10-24

we MAKE u DIlIl uusbioSOOi OhO " NNtoS
charge to the jury:
The action was brought for a specified
quality Of wheat, sold anddelivered to 't'1e
defendant at given price. The purchase
of the wheat was not denied by the Defend
ant, nor did he claim that any part ofthe
purchase money had been paid.
But the defendant sets up in his answer
thafhe bought the wheat for the specific
purpose of being manufactured, at his mi!
near by, into family flour; that the plain
tilfs knew that he bought 1t for that pur-
pose; that the wheat was damaged at the
time of its sale and had latent defect, of
which the plaintiffs were aware, and which
they fraudnlentlS fconcedled from theld
fendant. The defendant also AYERS that the
wheat was worthless.
The defendant also sets up O counter
claim for damages for the alleged fraud of
the plaintiffs in selling him damaged
wheat; for his trouble, on. finding the con-
dition of the wheat, In separating the bad
from the sound wheat, with which the
former had become intermiXed, and also
for damages for the injury to the reputa-
ton and business of his mill, In Aconse-
duence of the flour manufactured and sold
from the damaged wheat.
The plaintiffs reply generally denying
the facts and allegations set forth in the de-
fendant's answer and counterclaim.
"a i 81, yhaak o
sold to him for the specified purpose of be-
ing manufactured at his mill into family
-four. If that was so, it was apart Of the
contract of sale which the plaintiffs were
bound to fulfill. But II that were not the
case, then that allegation should be dis
missed. .atsfrf.s
The next question is-was there latent
defect in the wheat at the time of the sale
that rendered it unfit for the purpose for
which it was sold, and which the plaintiffs
knew OF, and did not disclose to, but con-
cealed from the defendants.
If not purchased for specific purpose,
still the inquiry should be made whether
there was such latent defect in the wheat
at the time of the sale, thus fraudulently
concealed from the purchaser.
A latent defect is one which an ordinary
purchaser could not discover upon an or
binary examination at the time of making
the purchase. But if the defect is one that
could be so discovered, it is not latent. II
there was no such latent defect in the
wheat, then there is an end to that part ol
the case But if there was, and it was
known to the plaintiffs who fraudulently
concealed it from the defendant, they mus
suffer the consequence, whether the wheat
was purchased for a specific purpose oI
not. The defect must be one materially
affecting the value of the article sold.
| If there was fraud in the concealment o
latent defect in the wheat, did the defend
ant sustain damages as he alleges, by thu
removal of the bad wheat and its separa
! tion from the sound, with which it had be
come intermingled, and by the sale of foul
manufactured from the bad wheatP Th'
defendant cannot recover for any damages
arising from his own act or neglect. Ii HI
knew the wheat was damaged, and mixet
it with his good wheat, or manufactured
-four from it withthat knowledge, he is no
entitled TO recover in either case for his owl
misconduct. He can only recover wher
he has used reasonable care and diligence
Ifthere was no fraud in the sale, tht
4, LOO - 4 l. Al. I'll =
their claim. But if there was fraud in til
sale, the plaintiffs should be allowed th'
actual value of the wheat sold, and the de
fendant such damages as he may have sus
tanned, 10 be stated separately in the yer
dict.
I After receiving the charge Of the Court
the jury, at about half-past four o'clock I
M, retired to their room to consider thei
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