McClintock v. Matlack

Opinion by

Morrison, J.,

This action of assumpsit was brought to recover the amount of a promissory note given by the defendants to the plaintiff in part payment for a heating apparatus installed by the plaintiff in the defendant’s dwelling house upon a warranty that it would heat the house in accordance with the contract and the plaintiff’s representations.

The execution and delivery of the note was admitted and the defendants sought to set off against it damages alleged to have been sustained by a breach of the warranty. The defendants offered no evidence to sustain the measure of damages established in such cases by the decisions of our Supreme Court and of this court, and the learned trial judge gave a binding instruction to the jury to find in favor of the plaintiff for the amount of the note, with interest, and the jury so found. The defendants’ learned counsel moved for a new trial, which was refused, and judgment having been entered on the verdict, defendants appealed.

In our opinion the court in disposing of the motion for a new trial gave sound reasons and cited ample authorities sustaining the action of the trial judge in giving a binding instruction in favor of the plaintiff. We do not consider it profitable to attempt to add anything to what has been so well said in the opinion refusing a new trial. All of the judges who sat at the argument were convinced that the case was correctly ruled by the learned trial judge.

The assignments of error are all overruled and the judgment is affirmed.