Rach's Mashing Process Co. v. Seitz ( 1896 )

PER CURIAM.

Assuming that the contract of sale contains a warranty of quality of the beer to be manufactured by the cooking process, defendant, by his pleading, does not present that issue. The answer, at considerable length and in much detail, makes specific denials of the allegations of the complaint, and makes affirmative allegation of breach of contract in several respects; but it nowhere alleges that there was a warranty in the quality of the beer which the cooker should produce, or that there was a breach of warranty in this respect. Consequently there was no issue raised which required a determination by the jury. Chambers v. Lancaster, 3 App. Div. 215, 38 N. Y. Supp. 253. The answer is also silent respecting any defect in the boiler, and the evidence offered to establish such defect was properly excluded, for the reason that no such issue was present to be tried. Linton v. Fire-Works Co., 124 N. Y. 533, 27 N. E. 406. In all other-respects it was not controverted but that the cooker complied with the contract. There was. therefore, no controverted question of fact to be decided, and the court was clearly right in directing the verdict which it did. The judgment should be affirmed, with costs.