Fiedler v. Tucker , 13 How. Pr. 9 ( 1855 )

Mitchell, Justice.

The judge charged, that the plaintiff was entitled to recover the unpaid balance of the contract price of the goods, unless they were sold as sound, and were, in fact, not sound. This would be understood by the jury as saying, that if the goods were sold as sound, and were not so, the plaintiff could not recover the unpaid balance, but must lose the difference between the value of sound and unsound; and amounts to a charge, that a sale of goods as sound, is a warranty that they are' sound. All goods ¿re usually understood to be sold as sound, unless something to the contrary is said; but a warranty does not arise from that understanding. To constitute a warranty there must be some expression, showing that the seller agrees that the goods ¿re of some certain quality.

^The judge also charged, that as Forbes acted as the mutual agent of buyer and seller, his understanding of the terms of the sale would bind both parties. His understanding, communicated by him to one party, and acceded to, or not objected to, by the other, would bind both; but to make his understanding bind both, without his communicating it, would make him the sole judge of what inferences were to be drawn from the facts, and his inferences control both, when it might be that neither intended what he inferred, or ever said anything to justify it.

For these reasons, there must be a new trial—the costs to abide the event.

Judge Morris, concurs in the propriety of a new trial.