Marquette Cement Manufacturing Co. v. Louisville And Nashville Railroad Co.

281 F. Supp. 944 (1967)

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Nature of the Case

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Facts

P sold cement to Vulcan. Vulcan had two divisions; one which purchased regular cement and one which purchased air-entrained cement. The division which purchased regular cement added air according to specifications it received for each job. The cement delivered to each looked the same. D got a car containing air entrained cement and the bill of lading directed that the car would be shipped to the proper division. The shipment was accidently routed to the division that needs regular cement. It is not possible to determine merely from appearance whether cement already contains an air entraining agent or not. The division added an air entraining agent to the cement after it had been unloaded and before receiving the notice of delivery from D which would show that the cement was already air entrained. The majority of it went to the construction site of a Nursing Home and part to a small cement floor in a garage. The concrete used in both of these jobs showed deficiencies, and it was necessary that the same be removed in each instance. The bill of lading showed that the cement was air-entrained. D’s clerk was uninformed as to any differences between the cement types. P sued D for $11,416.56. The cement itself was worth $1,408.16 with freight at $91.10. The rest of the damages were from the replacement costs for the wrong cement at job sites.