Semple v. Gozebian ( 1926 )

BLODGETT, J.

Heard upon motion for new trial after verdict of a jury for defendant.

Action upon a note for $395 given in payment for a silo purchased by defendant from the Unadilla Silo Company. The note ran to the Unadilla Silo Company and was endorsed over to the plaintiff for collection. The silo was delivered to and accepted by the defendant and was erected on the premises -of defendant.

The defence was that, wAen erected, there were certain defects in the same which rendered it useless.

A copy of the order for the silo was introduced in evidence. Nothing appears in this order relative to the construction of the silo. It was simply a sale of the material to be used in building the same.

The note specifies same was given in payment of the agreed price for a Unadilla Silo.

Defendant claims misrepresentation on the part of one Andrew, representing himself as the agent of the Unadilla Company, but in so far as the testimony goes there were little, if any, defects in the material furnished by said company. There is no testimony in the record that said company agreed to erect silo.

The jury were evidently led away from the real issue, either by sympathy 'for defendant or. by misunderstanding of the law as given by the court.

Motion for new trial granted.