Barkley-Gray Grocer Co. v. Kelley Cigar Co.

The suit was brought to recover damages for the defective quality of goods sold by defendant to plaintiff under contract set out below, and the judgment was for defendant. The plaintiff appeals from an order denying his motion for a new trial. The following is the contract between the parties, so far as material:

*992 Samples of the cigars were exhibited to the plaintiff at the time of the transaction by the defendant’s agent, and similar samples were used by the salesmen of plaintiff and defendant on sales made under the contract to merchants in Arizona and this state, and for the goods sold plaintiff paid the defendant in full. But it is alleged the cigars sold were inferior to the samples, and were returned to plaintiff by its customers, who refused to pay therefor. It is found by the court that the defendant agreed that the cigars to be delivered to plaintiff should be equal to the samples exhibited to plaintiff by defendant, and that there was a similar agreement by the salesmen of the plaintiff and defendant with the parties to whom sales were made. But it is also found that the cigars delivered by the defendant to the plaintiff, and by the plaintiff to its customers, were…