Hollingsworth v. Sharp

Adams, J.

The court instructed the jury as follows: £l The first question for you to decide is whether or not the machine was such as would do good work as a twine binder at the time of sale, when a twine attachment would be placed thereon. If it would, then there is no breach of the warranty; if not, then there is.” The court also instructed the jury that the burden was upon the defendant to prove the breach. The plaintiffs insist that there was no evidence that the machine would not have done good work as a twine binder if a twine attachment had been placed upon it at the time of sale.

The fact appears to be that the defendant, at the plaintiffs’ request, used the machine for a considerable time as a wire binder. It is insisted that evidence tending to show that the machine would not work when the twine attachment was placed on it did not tend to show that if such attachment had been placed on it at the time of sale it would not have worked. But we think that, if the machine would not work at the time it was tested with the twine attachment, such fact might be considered as tending to show that it would not-have worked with such attachment earlier. The plaintiffs contend that the twine attachment was placed on the machine by unskilled men, and that there was no evidence that the machine would not have worked if it had been properly managed. But, as we understand the evidence, the men who failed to make the machine work were sent out by the plaintiffs, and we think that the fact of their failure to make the machine work tended to support the defendant’s allegations. It may be that, according to the preponderance of the evidence, the machine did good work when properly managed, but it is not our province to weigh the evidence. "We think that there was some evidence supporting the defendant’s allegations, and that the verdict cannot be disturbed. We see no error.

' Affirmed.