decided: January 12, 1956.
RYAN READY MIXED CONCRETE CORP., PLAINTIFF-APPELLEE,
FRANKI FOUNDATION COMPANY, DEFENDANT-APPELLANT.
Before SWAN, FRANK and LUMBARD, Circuit Judges.
FRANK, Circuit Judge.
The evidence supports the trial judge's findings and legal conclusions that defendant accepted and used the delivered concrete-mix and did not offer to return it. Accordingly, title passed to defendant. New York Personal Property Law, McK.Consol.Laws, c. 41, § 129. The evidence shows that it was customary, on a large job such as this, for a buyer to have a representative at seller's plant to check whether the ingredients accorded with the specifications; this was not done here. Defendant, however, under Section 130, had a right to damages for breach of warranty, if it gave reasonable notice of the breach. But such a right must be asserted by a cross-action as to which defendant, the buyer, has the burden of proof. See 1 Williston, Sales, Section 255; Barber Mining & Fertilizing Co. v. Brown Hoisting Mach. Co., 6 Cir., 258 F. 1, 3.*fn1 As defendant offered no proof whatever of such a breach, the district court properly decided against defendant. In the circumstances, the issue of reasonable notice by defendant of the alleged breach became irrelevant; consequently, we need not consider the court's alleged error in excluding a letter bearing on that issue alone.*fn2 Defendant does not dispute plaintiff's claim for truck hire. Accordingly, on the merits, we must affirm.
A year after this suit began, defendant moved to implead Palisades as a third-party defendant. The district court denied this motion. It also denied defendant's motion, made at the commencement of the trial, (a) to consolidate the trial with the trial of a suit, begun a year after the case at bar, by defendant against Palisades, or (b) for leave to withdraw defendant's counterclaim without prejudice to renewal or to sever the counterclaim and consolidate it for trial with the trial of the Palisades action. Defendant argues that, since it could not effectively prove its counterclaim until the completion of its litigation with Palisades, the denial of all or some of these motions was erroneous. We do not agree. Defendant's was a compulsory counterclaim under Fed.Rules Civ.Proc. rule 13, 28 U.S.C.A.All these denial orders were within the trial court's discretion; in the circumstances, we see no "abuse" of discretion.*fn3