Barta v. Blahnik ( 1919 )

Owen, J.

The defendant seasonably requested the court to submit the following -questions to the jury: (1) Should you answer the second question “Yes,” then answer: Did defendant offer to return said engine within thirty days? (2) And if you answer said question “Yes,” then answer: Did the plaintiff induce the defendant to keep on trying said engine until it was returned ? The court refused to submit these questions, and such refusal is assigned as error.

It will be noticed that no question was submitted to the jury intended to elicit its finding upon the question of whether the failure of the defendant to return the engine within the period allowed for trial thereof was due to the inducements and representations of the plaintiff that the engine would eventually prove satisfactory. This was a material part of the defense. An affirmative finding on that fact would probably have entitled the defendant to judgment. The trial court seemed to be of the opinion that this defense was substantially negatived by the jury when they found that it was agreed as a part of the contract of sale that the defendant was to have thirty days’ trial of the machine. In this the court was in error. That question simply called for the jury’s finding upon what occurred at the time the contract of sale was entered into and before the delivery of the engine. The defense relied upon, and which was not submitted to the jury, arose from occurrences and conversations between the parties after the engine was delivered, and, if true, excused the defendant from his failure to- return the engine within the period of thirty days. It seems clear that the defendant was denied a finding of the jury upon this very substantial defense, for which reason there must be a new trial.

By the Court. — Judgment reversed, and cause remanded for a new trial.