Deming v. Foster , 42 N.H. 165 ( 1860 )

Bell, C. J.

It is contended that a's the oxen in this case were purchased by the plaintiffs, and sold by the defendant, expressly to do the work upon a farm, there is a warranty implied by the law that they were reasonably fit and suitable for that purpose, and the instructions to the jury assumed that principle as correct; but we think the legal rule intended to be relied upon falls far short of a case like this.

In the case of executory contracts for the making or furnishing goods or articles for a special use, the law implies a contract that the articles to be made or furnished shall be reasonably fit and proper for the use for which they are ordered. Jones’ Bail. 23, 90; Story’s Bail., sec. 431; 2 Kent’s Com. 588 ; Edw. Bail. 375.

And when articles thus agreed to be made or furnished are delivered, the law implies a warranty that the articles are reasonably fit and proper for that use. Jones v. Bright, 3 Bing. 533; Laing v. Fidgeon, 6 Taunt. 108; Brown v. Edgington, 2 M. & Gr. 279; Shepherd v. Pgbus, 4 Scott’s N. R. 434; Howard v. Hoey, 25 Wend. 351; Wright v. Hart, 18 Wend. 453; Waring v. Mason, 18 Wend. 432; Bull v. Robinson, 28 E. L. & E. 588; Gardner v. Gray, 5 Bing. 533; Hibbert v. Shee, 1 Camp. 113.

But there is no implied warranty as to the quality of an article sold, nor of its fitness for any particular use, where there is a present sale of a particular existing article, then open to the examination and inspection of the purchaser, and where he requires no express warranty.

To use the illustration of Maule, J., in Keates v. Kadogan, 2 E. L. & E. 320 and 10 C. B. 591, if a man says to another, “ sell me a horse fit to carry me,” and the other sells him a horse which he knows to be unfit to ride, he may be liable for the consequences; but if a man says, “ sell me that grey horse to ride,” and the other sells it, knowing he can not ride it, that would not make him liable. Jones v. Bright, 5 Bing. 535; Gray v. Cox, 1 B. & C. 108; Bluett v. Osborn, 1 Stark. 384; Howard v. Hoey, 23 Wend. 351; Sands v. Taylor, 5 Johns. 395; Chanter v. Hopkins, 1 Jur. 251 (N. Y. Ed.); 1 M. & W. 399, S. C.; Swett v. Colgate, 20 Johns. 196; Welsh v. Carter, 1 Wend. 186; Burr v. Gibson, 3 M. & W. 399; Taylor v. Bullen, 5 M. & W. 779; Bierne v. Dorn, 1 Seld. 98.

The case last stated by Maulé, J., is the present case. The negotiation was not for a yoke of oxen to do work upon a farm. The purchase was of the particular oxen here in question, then under the observation of the parties, and though both parties understood that they were purchased expressly to do the work upon a farm, yet, in such a ease, the law implies no warranty as to their fitness for that use. The purchaser had opportunity to require an express warranty,"If he thought proper. If, says ChancelIof’WeñT(2 Com. 478), there is no express warranty by the seller and no fraud, the buyer, who examines the article himself, must abide by all losses from its defects, a rule which fitly applies to the case where the article was equally open to the inspection and examination of both parties, and the purchaser required no warranty of its quality. Seixas v. Wood, 2 Caines 48; Welsh v. Carter, 1 Wend. 185; Chandelor v. Lopus, Cro. Jac. 4; Swett v. Colgate, 20 Johns. 196; Reed v. Prentiss, 1 N. H. 176.

Where there is an express warranty of the quality of an article sold, in any respect, no further warranty will be implied by the law. Thus, if a man sell a horse, and warrant it sound, and the seller knows that it is intended to carry a lady, and the horse is sound, but is not fit to carry a lady, there is no breach of warranty. With respect to any other' warranty beyond that expressed, the maxi m is, Fxpressum facit cessare taciturn. Maulé, J., in Dickson v. Tizinia, 2 E. L. & E. 514; Parkinson v. Lee, 2 East 314; Budd v. Fairmanner, 8 Bing. 52.

Here there was an express warranty as to the character and qualities of the oxen, alleged by the plaintiffs, and not denied by the defendant, the only question being whether the warranty was absolute in regal’d to holding back, as the plaintiffs alleged, or qualified as to one of the oxen, as the defendant contended. In such a case, there could be no warranty implied.

The declaration alleged a warranty that the oxen were all right, &c., and alleged as one of the breaches that the oxen would not hold back going down hill. It appeared from the plaintiffs’ evidence, however, that in the course of the negotiation the defendant told the plaintiffs that the off ox needed watching going down hill. Objection was made to this evidence as incompetent to sustain the declaration, on the ground of variance, the declaration alleging an unqualified warranty, and the evidence tending to prove a qualified warranty only. A motion was made for a nonsuit on the same ground.

As it is the province of the jury to weigh the testimony of witnesses, and determine its effect, we think it was competent for the court, in its discretion, to allow the evidence, and to refuse a nonsuit, leaving the jury to judge what was proved, and how it was to be understood, subject to proper instructions as to its legal effect..

As a plaintiff, who alleges as his cause of action the breach of an absolute and unqualified contract, can not recover upon proof of a conditional or qualified agreement, it must be the duty of the court, in submitting to the jury the evidence in such a case, to instruct them that if they find the contract proved to be materially variant from that alleged, the plaintiff’s case is not supported.

On examining the charge, we find no instructions reported bearing on this point. It would seem the jury were not told whether the evidence that the defendant stated to the plaintiffs that the off ox needed watching in going down hill, was or not a material qualification of the general warranty, that the oxen were all right, &c.; nor what would be its effect, if upon the evidence they found there was such a qualification.

The instruction actually given did not supply this defect, if' it was in itself correct.

The jury were told that the position taken by the defendant, and which his evidence tended to prove, that he told the plaintiffs, at the time of the sale, substantially, what the peculiarities and defects of the oxen were, if they found it sustained upon all the evidence, was a complete and perfect answer to the claim of the plaintiff's, in both its forms, since, if the defendant told the plaintiffs, substantially, what the oxen were before they bought them, he could have made no false warranty, either in express words or by implication of law.

It may well be doubted if the position is not too broadly stated, that if the defendant told the plaintiffs what the oxen were before they bought them, he could have made no false warranty in express words. Many things may be said in a protracted negotiation, either true or false, which are of no weight as to the contract finally made. If a party deliberately warrants an animal to be sound, when the trade is concluded, it is of no consequence what loose statements he may have made in the previous conversation, unless the court or the jury regard them as constituting qualifications of the final bargain.

The questions for the jury were, whether the defendant told the plaintiffs that the off ox needed watching going down hill, whether it was so told as to qualify the general statement that the cattle were good to hold back, or were all right, &e. And the instruction was defective in not informing the jury, whether, if they found those points in the affirmative, they constituted a variance which would defeat the plaintiffs’ right to recover, because the contract proved, in a material respect, was not the same stated in his writ.

If a party desires an instruction of the court upon a particular point, or wishes the court to present certain views of the law, and the judge to give such views or instructions, the proper course is for the party to move the court to instruct as he desires; and if the court decline, he may then make the exception. He should not lie by until after the trial, and then take the exception, when it is too late to remedy the omission. Moore v. Ross, 11 N. H. 557.

The statute (Rev. Stat., ch. 188, sec. 15) requires a notice in writing, signed by a justice or notary, stating the day, hour and place of taking depositions, to be given to the adverse party, or left at his usual place of abode, &c., a reasonable time before the taking.

The twenty-first general rule of court provides that no notice to the adverse party of the taking of depositions shall be deemed sufficient unless served three days, exclusive of the day of service and of the day of caption, before the day on which they are to be taken.

This court has all the powers of the highest judicial tribunals, and may rightfully exercise any powers belonging to the superior courts of law in England. Prov. Stat., 1771.

But no court here, or" in England, ever claimed the power to dispense with or disregard any enactment of the legislature, passed in the due exercise of its constitutional powers. It was on this principle that the court felt bound to hold, in the case of Cater v. McDaniel, 21 N. H. 231, that a deposition, taken during the term of the court, and under its order, but without notice, was not competent evidence. And it must be taken as an invariable rule, that depositions can not be admitted as evidence without the notice required by the statute, unless such notice is expressly or impliedly waived by the adverse party.

Courts of justice have power, as a necessary incident to their general jurisdiction, to make such orders in relation to the cases pending before them, as are necessary to the progress of the cases and the dispatch of business. When the same rules come to be generally required in the cases as they arise, the courts have found it convenient, instead of special rules in each case, to establish general rales, applicable to all cases of the same class, and their power in this respect is recognized by statute.

The rules of the court, by which is intended the general rules, it is said, and perhaps not improperly, are the law of the court. But such rules have material differences from the statute laws. Like the statutes, they constitute the rules of decision and the test of right, as to every thing done while they continue in force, and the rights of parties, as to every thing done under the rules in force, are determined by those rules. But as the court had originally the power to make special rules, as . the exigencies of each case might require, and as such special rules might be modifications of former rules, even to the extent of their entire revocation; so the courts have still, notwithstanding their general rules, the power to make special rules in each case, though they may have the effect to exempt a particular case from the operation of the ordinary general rule.

In this respect the practice here is and always has been different from that adopted in Massachusetts (Thompson v. Hatch, 3 Pick. 512), where it was held that a plea in abatement can not be filed, 'after the first four days of the term, by any special order of the court. The court here have always extended the time of pleading in abatement, in cases where justice seemed to require it, and the application is made before the expiration of the four days, as, for example, where the writ is improperly withheld from the defendant.

The practice here seems consistent with the theory of the law, that the court may make such orders in each case, from time to time, as justice may require. A general rule, in its application to any particular ease, being neither more nor less than a special rule to the same effect.

"What shall be deemed reasonable notice, under the statute, of the taking of depositions, independent of the genei’al rules, must, in each case, be determined upon consideration of the special circumstances. And it was to avoid the necessity of determining in advance for each case, what shall be such reasonable notice, or of deciding, after the taking, whether reasonable notice has been given, that the general rule, as to notice, has been adopted.

But this rule, like most general rules, must have exceptions, and the court have the power to determine in advance, when such exceptions shall be admitted. They may thus decide what shall be, under special circumstances, reasonable notice. If, for instance, depositions are to be taken in California, or Oregon, and a party should apply to the court for an order that sixty or ninety days’ notice should be necessary to the taking of such depositions, the court might properly make such order, and the depositions would be properly rejected, if the order was disregarded, though the general rule requires only twenty days’ notice in any case.

If, however, depositions have been taken in conformity to the general rules, they would not be rejected, because the notice was too short, but the court would relieve the party by allowing time to take the evidence anew.

Upon the same principle, if a witness who was attending court, or who was expected to be present, should be taken sick, and application should be made to the court, it would be within their discretion to limit a very short notice, and the deposition taken under such order would be admitted.

It has been long since decided that depositions will be rejected, if it appear that the opposite party was notified to attend the taking of them at a time when he must necessarily be absent, or engaged in important business requiring his personal attention, and this known to the party giving the notice. And attorneys of the court are not to be notified to attend the taking of depositions, at a time when the court is sitting in the county where they reside, if the other party may be presumed to know that fact. Ela v. Rand, 4 N. H. 54. But even under such circumstances the court may, in its discretion and upon a proper case, direct in advance that a deposition should be taken, and that it may even be done pending the trial of the cause in which it is to be used, and upon such brief notice as the emergency may require.

"We entertain no doubt of the power of the court to appoint a commissioner to take a deposition, or to order it to be taken during a term or pending a trial, without interrupting the trial, or to prescribe what shall be sufficient notice, however short; and, ordinarily, the whole court would not revise the orders of a judge, at the trial term in such a case, unless the question was expressly-reserved by him for their consideration.

If this deposition had been taken upon notice, agreeably to the statute, given within any time prescribed by the coui’t, we think it would have been competent; but as it was taken without any such notice, it must be held incompetent.

Verdict set aside.