{
  "id": 5194000,
  "name": "Daniel G. Trench, doing business as Daniel G. Trench & Co., v. Hardin County Canning Co.",
  "name_abbreviation": "Trench v. Hardin County Canning Co.",
  "decision_date": "1896-12-14",
  "docket_number": "",
  "first_page": "269",
  "last_page": "274",
  "citations": [
    {
      "type": "official",
      "cite": "67 Ill. App. 269"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "3 N. H. 299",
      "category": "reporters:state",
      "reporter": "N.H.",
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        6754476
      ],
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    {
      "cite": "36 Ill. 81",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        5215089
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      "opinion_index": 0,
      "case_paths": [
        "/ill/36/0081-01"
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  "last_updated": "2023-07-14T17:00:34.097112+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Daniel G. Trench, doing business as Daniel G. Trench & Co., v. Hardin County Canning Co."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Gary\ndelivered the opinion op the Court.\nThe dealings between these parties began by a letter from the appellee to the appellant, inquiring the price of \u201ccans\u201d\u2014as the case shows, tin cans in which to pack comestibles.\nThe appellant replied, his letter containing this clause :\n\u201c Sellers guaranteeing to pay for all cans and contents spoiled by leaks exceeding two cans to the thousand, leaks to be held subject to the order of seller.\u201d\nAll of the letters\u2014and there were many\u2014from the appellant to the appellee, were on letterheads as follows:\n\u201c Trench, Daniel G. Trench & Go.,\nChicago. Canning Factory Outfitters and Brokers in Cans, Canned Goods, Tin Plate & Metals.\n31 Lake Street, Chicago.\u201d\nWithout following the details, the result was that the appellee bought 100,000 cans, which were shipped by a firm of Ranney & Phelps of Lewistown, Ill., with a bill of lading and draft by them on the appellee, attached, which the appellee paid.\nThe appellee began to use the cans, and then sent to the appellant this letter:\n\u201cHardin County Canning Company,\nSuccessors to Elizabeth town Canning Company, Packers of Choice Canned Goods.\nElizabethtown, Ky., Aug. 5,1893.\nMessrs. Daniel G. Trench & Co., Chicago, Ill.\nGentlemen : The car load of two-pound cans we bought of you were not near so good as the sample you sent us, as far as appearances were concerned. They are a very rough lot of cans. This week we commenced packing, and we are sorry to inform you that the number oE leaks is very much greater than the guarantee calls for, and that the leaks come from the cans themselves. Of course we expect to hold you to your guarantee, and we advise you now so that we can both be properly protected. We have had practical tinners to examine the cans, and we are prepared to substantiate all statements as to leaks. It might be to your interest to send a man here to examine them. Let us hear from you, as we want to do the proper and square thing. But this is not a year for leaks in anything.\nRespectfully, H. A. Sommers,\nPres. H. C. C. Co.\u201d\nTo which appellant replied:\n\u201c Trench, Daniel G. Trench & Co., Chicago.\nCanning Factory Outfitters and Brokers in Cans, Canned Goods, Tin Plate & Metals, 31 Lake Street.\nChicago, August 23, 1893.\nHarding County Canning Co., Elizabethtown, Ky.\nDear Sirs: Tour favor in regard to leaks received. Dump the cans. We have perfect confidence in your count. Tour claim will be paid on basis of cost of cans and contents, and you know this means packer\u2019s cost\u2014about sixty-1 five cents per dozen would be right; we have never settled at a higher cost than this in your section. We will send you check if this is satisfactory.\nTours truly,\nDaniel G. Tbench & Co.\u201d\nAnd the appellee answered:\n\u201c Habdin County Canning Company,\nSuccessors to Elizabethtown Canning Company, Packers of Choice Canned Goods.\nElizabethtown, Ky., August 26, 1893.\nDaniel G. Trench & Co., Chicago, Ill.\nGentlemen : In reply to your favor of August 23d, we expect it would be right to accept your terms of sixty-five cents per dozen for the \u201cleaks.\u201d Tou need not, however, send check \u25a0 for the number already discovered, but we will wait and send you bill at the end of the season for the total amount. We are having a good deal of trouble with the cans, but the number of leaks is not so large as last week.\nBespectfully,\nH. A. Sommees.\u201d\nThere is testimony that Banney & Phelps mailed, and that the appellee did not receive the following:\n\u201cLewistown, Ill., April 8, 1893.\nHardin County Canning Company, Elizabethtown, Ky.\nGentlemen: We are shipping you to-day, freight prepaid, a car containing 100,000 2-pound cans, 1-f-inch opening, as per sale made to you through Messrs. D. G. Trench & Company, Chicago. We have drawn on you through Messrs. Turner, Phelps & Company, bankers, for $1,950, and attached invoice and bill of lading to the draft. Kindly honor the same on presentation. Thanking you for your valued order, we are, very truly yours,\nBanney & Phelps.\u201d\nThese letters appear in the case:\n\u201c Daniel G. Trench & Co.,\n31 Lake street.\nChicago, Sept. 8, \u201993.\nHardin County Canning Co., Elizabethtown, Ky.\nDear Sirs : Mr. Marriott called on us to-day and read your letter in regard to cans. We at once wired the manufacturers to send a man to your place at once to look up the matter. Tours truly,\nDaniel G. Trench & Co.\u201d\n\u201c Hardin County Canning Company,\nSuccessors to Elizabethtown Canning Company, Packers of Choice.Canned Goods.\nElizabethtown, ICy., Sept. 11, \u201993.\nDaniel G. Trench & Co., Chicago, Ill.\nTour letter to hand stating that you had a talk with Mr. Marriott, who called at your office in regard to the leaks in cans we bought of you, and that you had wired the manufacturers to send a man here at once to investigate. The man has not come yet, and he should come at once and the matter settled up.' For a small concern we are bound to lose by the bad cans anyway, but we certainly do want a settlement as per agreement. Let us know at once when the representative of the manufactory of the cans will be here. Respectfully,\nH. A. Sommers, Pres.\nP. S. Who made these cans, anyhow ? \u201d\nJSTo reply to the latter appears.\nThus far, the relations of the parties seem to have been amicable, and the first indication we find of trouble is in this letter:\n\u201c Daniel G. Trench & C'o.,\nCanning Factory Outfitters and Brokers in Cans, Canned Goods, Tin Plate & Metals, 31 Lake St.\nChicago, Oct. 31, \u201993.\nHardin County Canning Co., Elizabethtown, Ky.\nDear Sirs : Tour favor received. It will be \u00faseless to draw on us as suggested. Tour settlement of this matter of claim lies with the sellers of the goods on whom we gave you contracts (see inclosed copy of contracts), Messrs. Ranney & Phelps, of Lewistown, Ill. Tour communications bearing on this subject and the bill you rendered have been submitted to them, and from their correspondence we had hoped that before this some member of their firm would have called on you. This seems difficult to arrange, as both Mr. Ranney and Mr. Phelps have been quite busy. They have now, however, commissioned our Mr. I. Y. McOagg to visit your place and make report on the cans and your claim in general. Mr. McOagg leaves here on Thursday of this week for your city. Writer will be absent from Chicago for about ten days, leaving to-night for Baltimoi\u2019e. Kindly, in meanwhile, communicate with Messrs. Ranney & Phelps on any points touching the claim which you may desire to communicate. Tours truly,\nDaniel GL Trench & Co.\u201d\nThe evidence is that the appellee packed 60,000 cans, of which 21,004 leaked, and 40,000 cans remain empty. The appellee sued to recover the price of the leaky cans, and sixty-five cents per dozen for the contents, as well as the price of the cans not used. The verdict covered the leaky cans and contents only.\nThe only objection of the appellant which can be considered as going to the merits, except surmises, not supported by any evidence, as to fair dealing by the appellee, is that the appellant acted only as agent for Ranney & Phelps, and the recourse of the appellee is to them.\nOmitting the letter of Ranney & Phelps of April 8, 1893. the receipt of which is denied by the appellee, there was, so far as the record shows, no notice to the appellee that the appellant was not the principal.\nAnd even yet there is no evidence that he had authority from Ranney & Phelps to bind them \u201c to pay for all cans and contents spoiled by leaks,\u201d etc.\nWithout such proof, his undertakings bind him personally. Wheeler v. Reed, 36 Ill. 81.\n\u201cDump the cans\u201d in the letter of appellant to appellee of August 23,1893, was not a direction to fill no more. Three days later the appellee wrote a letter, showing that it was going on to fill the cans, and it does not appear that the appellant was dissatisfied.\nThe letter from which the first quotation is made contained the sentence: \u201c Understand we' quote you only on\ncans that are well made, tested and perfectly satisfactory for your work.\u201d\nThose words are an express warranty that in legal effect does not vary from that alleged in the second count, that the appellant promised that the cans \u201cshould be good and first-class in every particular, and suited to the \u201d appellee\u2019s \u201c business.\u201d And the first quotation fixes the damages if the warranty should be broken.\nWe can not occupy much space replying to arguments that the pleading upon an implied and express warranty are different, contrary to 1 Ch. PI. '309, Ed. 1893, or to showing that Parkinson v. Lee, 2 East, 314, which decides that a sale by sample is not a warranty that the article is merchantable, is inapplicable here.\nThat none of the letters were dated on the day that in the declaration it was alleged that the contract was made, is no variance. Brown v. Smith, 3 N. H. 299.\nThat joinder of common and special counts in assumpsit is not a misjoinder, needs no authority.\nThere is no error, and the judgment is affirmed.",
        "type": "majority",
        "author": "Mr. Justice Gary"
      }
    ],
    "attorneys": [
      "Stephen G. Swisher and W. N. Horner, attorneys for appellant.",
      "Prentiss, Hall & Gregg, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "Daniel G. Trench, doing business as Daniel G. Trench & Co., v. Hardin County Canning Co.\n1. Words and Phrases\u2014Express Warranty.\u2014The words, \u201c understand we quote you only on cans that are well made, tested, and perfectly satisfactory for your work,\u201d contained in a letter in which was a quotation of prices and an offer of sale, amount to an express warranty that the cans are to be good and first-class in every particular and suited to the buyer\u2019s business.\n2. Agents\u2014When Personally IAable.\u2014Where an agent deals with third persons who have no knowledge of his principal, his undertakings will bind him personally.\n3. Practice\u2014What is Not a Misjoinder.\u2014The joinder of common and special counts in assumpsit is nota misjoinder.\n4. Variance\u2014What is Not.\u2014The fact that letters in which was contained a contract bore a date different from that named in the declaration upon .the contract as the day when it was made, is no variance.\nAssumpsit, upon a contract, etc. Appeal from the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding.\nHeard in this court at the October term, 1896.\nAffirmed.\nOpinion filed December 14, 1896.\nStephen G. Swisher and W. N. Horner, attorneys for appellant.\nPrentiss, Hall & Gregg, attorneys for appellee."
  },
  "file_name": "0269-01",
  "first_page_order": 267,
  "last_page_order": 272
}
