Crenshaw v. Slye ( 1879 )

Irving, J.,

delivered the opinion of the Court.

The suit, in which this appeal was taken, was instituted upon a promissory note of the appellee’ to the appellants, for one hundred and twenty-three dollars. The narr. contained the ordinary money counts, with a special count setting out the promissory note. The appellee pleaded non assumpsit, and under the general issue proved that the note was given for two and one-half tons of a fertilizer called “ Eureka,” of which the plaintiffs were manufacturers, and offered evidence tending to prove certain representations at the time of the sale, respecting the value of the fertilizer, which were claimed to amount to a warranty, and upon which the appellee relied in the purchase.

The main question is, did the Court, in the instructions given the jury, in lieu of the instructions asked by the respective parties, correctly instruct the jury as to what they must find to entitle the appellants to recover? In other words, were the elements of evidence necessary to make a warranty from representations sufficiently stated in the instructions. No question of the admissibility of evidence under the pleadings, or of its legal sufficiency to support the instructions is before us under the record.

The rule of law is, that any affirmation of the quality of the artiole, made at the time of the sale, intended as an assurance of the fact stated, and relied on and acted on by the purchaser, will constitute an express warranty. This rule all the authorities" lay down, and it is not thought necessary to make special citations. Whether such representations were made with the intention of securing a sale, and were relied on by the purchaser, is for the jury, to he inferred from the nature of the sale and the circumstances of the particular case. Benjamin on Sales, 409 and 500. The simple question is, then, did the Court sufficiently instruct the jury as to what they must find to constitute a warranty P By the first instruction the Court said “ If the jury find from the evidence in this case, that the note, upon which this suit was brought, was given for the fertilizer called “ Eureka,” and that the said “ Eureka” was bought upon the representation of the plaintiff or his agent, that said “Eureka,” was a valuable fertilizer; and shall also find that the said “Eureka,” so sold to the defendant, if they find it was so sold, was valueless and worthless as a fertilizer, then the plaintiff is not entitled to recover.” This Court does not think this instruction asserts that hare commendation is a warranty ; hut think it sufficiently instructs the jury on the matter of their inquiry. It requires them to find that the note was given “ upon ” the representations made. That the representations were the procuring means of securing the appellee’s name to the note. It does not simply say, that if the note were given for the fertilizer and that certain representations were made, they must find for the defendant; hut it states that the note must he found to have been given “upon ” such representations, which is the same thing as saying in consequence of them. If that were so, and the jury found that the representations were untrue, and that the “Eureka” was utterly valueless as stated in the instruction, the appellee was entitled to the verdict as the jury were instructed. We do not think that the jury could reasonably misunderstand the instruction as given ; and we think that it did sufficiently instruct them. If the first instruction given by the Court was justified by the proof, and we must assume that it was, then the prayers of the plaintiff were correctly rejected, because they ignored entirely the representations of the plaintiff respecting the value and virtue of the fertilizer. The second instruction given by the Court being the converse of the first was properly given.

(Decided 20th June, 1879.)

As to the question of evidence which was excepted to, it would seem that no objection was taken to its admissibility as evidence, but only as to the time of its production. That being wholly within the discretion of the Court, we cannot review it.

Judgment affirmed loith costs.