George Lueders & Company, Plaintiff in Error, v. Hudson Manufacturing Company, Defendant in Error.
Gen. No. 20,479.
(Not to be reported in full.)
Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.
Heard in the Branch Appellate Court at the October term, 1914.
Reversed and remanded.
Opinion filed October 5, 1915.
Statement of the Case.
Action by George Lueders & Company, a corporation, against Hudson Manufacturing Company, to recover the purchase price of eighty-five pounds of vanilla beans. The receipt of the beans and the correctness of the purchase price were admitted by the defendant and a set-off was filed, in which the defend*29ant claimed that the beans contained formaldehyde and salicylic acid, and that an extract consisting of a maceration of said vanilla beans, grain alcohol, glycerine and sugar was found, upon chemical analysis, about eight months thereafter, to contain formaldehyde and salicylic acid, neither of which products being normal ingredients of vanilla beans, but are sometimes used as preservatives thereof. Defendant claims that said extract was unsalable and became a total loss.
Abstract of the Decision.
1. Appeal and error, § 536
—what is necessary to preserve objection for review. A contention on appeal that a plaintiff who made no motion for a directed verdict at the close of the evidence cannot question the sufficiency of the evidence to sustain a verdict for the defendant is not well taken.
No chemical analysis of the beans at any time was made by either of the parties. There were two shipments of beans of fifty pounds each, following the receipt by the defendant of a sample lot of beans of twenty-five pounds.
About two-thirds of the beans were used by the defendant and the remainder were returned to the plaintiff, credit being given therefor. Plaintiff, who was an importer of vanilla beans, denied that formaldehyde or salicylic acid was used by it as a preservative of said vanilla beans, or for any other purpose in connection therewith. There was a trial by jury, resulting in a verdict and judgment in favor of the defendant on its set-off for three hundred dollars, whereupon the plaintiff brought error.
Hoyne, O’Connor & Irwin, for plaintiff in error; Carl J. Appell and Heymann F. Tucker, of counsel.
Lannen & Hickey, for defendant in error.
Mr. Justice McGoorty
delivered the opinion of the court.
*302. Evidence, § 461
—what is sufficient to establish fact. The fact that salicylic acid and formaldehyde are found in an extract made from vanilla beans and other ingredients* such as grain alcohol, glycerine and sugar, eight months after such extract was made is not sufficient evidence to show that the beans contained such acid or formaldehyde.
3. Appeal and error, § 1402
—when verdict will be set aside. A verdict manifestly against the weight of the evidence will be reversed.