Page:Federal Reporter, 1st Series, Volume 6.djvu/868

 856 FEDERAL REPORTER. �Dawes & Co. V. Peebles' Sons.' (Uircuit Court, 8. D. Ohio. March, ]881.) �1. Special Contbact — Pleadinq — Whbn Plaiktifp May Dbclake �on common counts. �Where the contract hasbeen peiformed, orwhereit has been aban- doned by the parties, or put an end to by the defendant, or where it has been only partly fulfilled by the plaintili and the defendant has ac- cepted and enjoyed the beneflt thereof, the plaintifE may elect to bring hig action either upon the special contract, or in general assumpsit, declaring upon the common counts. �2. GBNBKAii Issue to Common Counts m Assumpsit— Dbfences Under �— Failukb op Considebation. �Uuder the general issue in assumpsit upon the common counts, the defendant may show that he was under no legal obligation to the plaintifl for the cause of action set out in the petition, and may also show a total or partial failure of consideration, �3. WhBN DuTT 01' COUBT TO CONSTEUE CONTBAOT— VeRBAL ConTRACT �— CONFIilCT AS TO IT8 TbBMS. �If the contiact between the parties was in writing, it would be the duty of the court to construe it ; but if it was a verbal contract, and there is a conflict in the testimony as to its terms, the court cannot construe it, but the matter must be left to the jury, to determine from t^U the evidence what the contract was. �4. Implibd Wabbantt dp Manufactuebd Article— Fit for Use In- �TENDED. �Where a vendor agreed to supply or manufacture for a vendee a chatte], without the vendee having an opportunity of examination, the law implies that the vendor undertook that it should reasonably answer the purpose for which it was intended by the parties. Failure in this respect authorizes the vendee to reject within the time specilied for its trial. �6. Sale op Manupactured Article — Acceptance. �If, before the expiration of the time flxed by the agreement for its trial, the vendee notified the vendor that he would not accept it, and requested the vendor to take it down and remove it, which he refused to do, the fact of its remaining in the position in which the vendor placed it, and its use by the vendee for a few days thereafter, while waiting for the vendor to take it down and remove it, would not be an acceptance by the vendee. �Action for Goods Sold and Delivered. �*Reported by Messrs. Florien Glauque and J. C. Harper, of the Cincin- nati bar. ��� �