Livingston & Co. ex rel. Sellers v. Stevenson

Opinion by

Mb. Justice Mitchell,

The charge in this case was unfortunately inconsistent. The plaintiff’s points were put aside without answer on the ground that “ the questions of guaranty and warranty do not arise here,” and yet the jury were in effect told there was a warranty, by the instruction “ The defendant said it was to be satisfactory. Was it satisfactory? If not, your verdict should be for defendant.”

The case was one which required that the jury should have clearly explained to them the distinction between a warranty and a mere representation. Probably a large majority of sales are made under a more or less express representation that the article will be “ satisfactory ” to the buyer, but that affords no ground for a refusal to pay. The law on this subject was correctly stated in plaintiff’s fourth point, that “ unless the jury believe from the evidence that the plaintiff expressly warranted the windmill to work satisfactorily, or fraudulently and falsely represented that it would work satisfactorily, then' the plaintiff is entitled to recover, even if the jury find that it did not work satisfactorily.” This point should have been affirmed. The plaintifE was not a manufacturer making windmills to order, but a dealer selling them ready made. The circumstances therefore did not raise any warranty by implication. If* there was no express warranty there was none at all: Warren v. Phila. Coal Co., 83 Pa. 437; Ryan v. Ulmer, 108 Pa. 332; Shisler v. Baxter, 109 Pa. 443; Mahaffey v. Ferguson, 156 Pa. 156. The learned judge charged that “ there was no express guaranty proven.” In the absence of any evidence of fraudulent misrepresentations, under this view he should have directed a verdict for plaintiff.

The question asked of Sentman, whether defendant, when sued on this claim before the witness as justice of the peace, made defence only on a set-off, should have been admitted. It bore directly on the probable good faith of the present defence.

Judgment reversed and venire de novo awarded.