Evening capital news. (Boise, Idaho) 1901-1927, 1912-11-22
DECISION INNORTH
. IDAHO CASE GIVEN
Supreme Court Sustains
Judge Steele in Case
From Latah County.

ment rendered in the Second judicial
district for Latah county. involving
the brick used in the construction of
the new federal building there. The
supreme court affirns Judge Edgar g.
Steele and the judgment given for
Brown. Chief Justice Stewart and
Justice Sullivan concur.
1t is held by the supreme court that
where contractor, as> Scheurman.
purchases brick by sample and re-
ceives shipments from time to time
and accepts the same and uses them
in the construction of the building for
which they were purchased and makes
no complaint of the kind or quality Of
the brick furnished, and continues to
order more. he cannot, upon action to
recover the purchase price, successfully
maintain the defense that under section
1925. revised codes of Idaho, the vender
having sold by sample warranted the
bulk to be equal to the sample.
Facts Are Made Clear.
The opinion of Justice Ailshie Is as
follows:
'"This action was Instituted to re-
cover a balance due for the purchase
price of 100000 brick sold by the plain
tiff to the defendant at the agreed price
of $11.35 per thousand. These brick
were contracted for and used in the
construction of federal building IN
the city of Moscow. The appellants
herein were the contractors in the
erection and construction of the build
Ing and their contract with the re-
spondent was in advance Of the COM
mencement of work on their contract.
The controversy here arises chiefly
out of the action Of the government
authorities in refusing to allow the
contractor to use lot of the brick
because they were "off color" or not
the proper color as agreed upon In
the contract between the contractor
and the government Sample bricks
were furnished by the respondent in
the first place, and subsequently some
change was made by the appellants,
but it seems from the evidence that
the respondent was not apprised of
this change and did not agree to 1t; at
best there is a conflict of evidence on
this point 1t Is admitted that no OBJ
lection was made to the brick during
the time they were being furnished
and that they were received and ac-
copied and used by the appellants.
while the contractors We're obliged
to use a large percentage of them in
inside work at places where cheaper
brick could have been used because they
were not fit to use on the outside, still
they did not apprise the respondent OF
this fact and did not object to receiv-
ing the brick. On the contrary, they
| were all the time urging the respond
| ent on to ship more brick. The SUI
! perintendent or agent who represent
ed appellants testified that he did not
notify the respondent that the brick
were not fit for his use and that he
did not object to them, and he ex-
plains his failure to mako objections
or protest, on the ground that had he
done so they feared they would not
receive any more brick at all and thai
their contract would have been tied VI
indefinitely and it would have caused
| them great damage. This fact alone
in our judgment, Is sufficient to au-
| thorize and require an affirmance o.
the judgment In favor of the respond
| ent.
Must Be Fair and Open.
ut is too fundamental to require dis.
| CuSSioH here tHdL d VI pCA
sonal property who receives and ac'
cepts the property. knowing at thu
time it's condition and fitness or un
fitness for the purpose from which IN
is purchasing, cannot accept the SAM
and appropriate 1t to his use and con
tinue to demand, receive and accep
more and more goods of the SAM
character and quality. and then afte
he has used it raise objection for thu
first time that 1t was not up to tn
standard or like the samples Of tn,
goods he contracted for in the first In
stance. He must be fair and opei
about his dealing. II the goods fur
nished are not up to the standard o.
the sample, he must use REASONABLE
diligence in apprising the vendor ant
make his objection and refuse to accep
further goods of the kind.
ut is true that the statute (SeC
1920 provides that One who sells o
agrees to sell goods by sample thereb,
warrants the bulk to be equal to thu
sample and this principle would b.
true Independent Of statute cas- eye
2e3), but the evidence here tend
stronglyyto prove that the brick wer
furnished in accordance with TIN
samples which respondent had give,
in the first place and supposed the ap
pellants. were expecting followed.
Judgment Should be Affirmed.
I ut appears that when the contrac
was first made by the appellants ant
respondent that respondent furnishe
samples which the superintendent o
agent for appellants caused to be sen
to the department at Washington. ant
thereafter some change or substitution
was made In the samples. To this
however. respondent claims to hav
never consented and that he had n
knowledge thereof.
i while some contention has beef
made that the respondent had waive,
his right to rely on the original con
tract OF $11.35 per thousand and tina
he could only recover on a quantun
meruit, there is no evidence In tn
record that would justify or supper
that contention.
I'VE find no error in the rulings .
the co,,rt in the admission or reiec