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JOSEPH H. LYON, PLAINTIFF IN ERROR, v. JOHN BERTRAM

December 1, 1857

JOSEPH H. LYON, PLAINTIFF IN ERROR,
v.
JOHN BERTRAM, ALEXANDER H. TWOMBLY, AND EDWIN LAMSON.



THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of California. The facts are particularly stated in the opinion of the court. It was argued by Mr. Brent and Mr. Poe for the plaintiff in error, and Mr. Fessenden for the defendants. The counsel for the plaintiff in error, after stating their objections to the pleadings in the case, and also those which were founded on the statute of limitations in California, contended that this was not an entire contract for the purchase of the whole cargo, but only for so much of it as was branded Haxall; that the description of the quality was material; that Lyon, if had chosen, could have declined to receive any part of the cargo; that the acceptance of a part, under the circumstances, did not affect his right to repudiate the residue.

The opinion of the court was delivered by: Mr. Justice Campbell delivered the opinion of the court.

Mr. Fessenden contended that the contract was entire; that it was an executed contract; that the term Haxall was descriptive merely, and not material; that if it was material, then it was an express warranty upon which the purchaser must rely, without rescinding the contract; and that the acceptance of a part was an acceptance of the whole.

This suit was commenced by the defendants in error, to recover the price for a cargo of flour, bargained and sold to the plaintiff in error, in the city of San Francisco. The judgment of the Circuit Court was rendered upon a special verdict in favor of the plaintiffs in that court. The verdict finds that on the 13th January, 1853, the plaintiffs, and Flint, Peabody, & Co., were, jointly, the owners of a cargo of flour, consisting of two thousand barrels, branded, and which were in fact Gallego, then being on the barque Ork, lying at a public wharf in San Francisco, and composing its entire cargo of flour, which inspected 1,771 barrels superfine, and 229 bad.

The firm of Flint, Peabody, & Co., as agents and part owners, on the day aforesaid, concluded the following agreement with the defendant:SAN FRANCISCO, January 13, 1853.

Sold this day to Joseph H. Lyon, Esq., a cargo of Haxall flour, now on board the barque Ork, lying in this harbor, being about two thousand barrels, on the following terms and conditions, viz: Joseph H. Lyon, Esq., agrees to pay Messrs. Flint, Peabody, & Co., thirty dollars per barrel for such as shall inspect superfine, and twenty-seven dollars per barrel for such as shall inspect bad; payment to be made as it may be delivered, and to be received and paid for on or before the expiration of three weeks from date.

If Messrs. Flint, Peabody, & Co., elect, they can land and store the flour at the expiration of one week, or so much as may remain on board at that time, Mr. Lyon paying storage and drayage expenses.

J. H. LYON.

FLINT, PEABODY, & CO.

On the 25th January, 1853, the defendant applied to Flint, Peabody, & Co., for fifty barrels of flour, so purchased by him, by a written order, as follows:

SAN FRANCISCO, January 25, 1853.

Messrs. Alint, Peabody, & Co., will please deliver Mr. William R. Gorham, or bearer, fifty barrels of flour, out of the lot purchased from the ship Ork, and oblige

J. H. LYON.

Paying them therefor the contract price, amounting to the sum of $1,500, and received from Flint, Peabody, & ...


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