Bartling v. Behrends
| Decision Date | 13 October 1886 |
| Citation | 20 Neb. 211,29 N.W. 472 |
| Parties | BARTLING v. BEHRENDS. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from Otoe county.
F. T. Ransom, for plaintiff in error.
Representations descriptive of the thing sold, or which may be taken as an expression of the opinion of the vendor, do not necessarily import a warranty. Horton v. Green, 66 N. C. 596;Tewkesbury v. Bennett, 31 Iowa, 83;Carter v. Black, 46 Mo. 384;Lawton v. Keil, 61 Barb. 558;Baker v. Henderson, 24 Wis. 509.
Thomas B. Stevenson and John C. Watson, for defendant in error.
This action was on a promissory note executed by defendant to plaintiff. The answer of defendant admitted the execution of the note sued on, but alleged as a defense thereto that the note was given for the purchase price of a self-binder harvester sold by plaintiff to defendant, and that the harvester was sold with a warranty as to its quality, which was broken, and that the harvester was worthless, and returned to plaintiff. The reply admits that the consideration of the note was the purchase of the harvester, but denies the other allegations of the answer. There was a jury trial, which resulted in a verdict and judgment for defendant. Plaintiff alleges error, and brings the cause to this court for review.
The first contention of the plaintiff in error is that the verdict is not sustained by sufficient evidence. We have carefully examined the testimony, and cannot so hold. There is a sharp conflict in the testimony; each side, of course, contending for and seeking to establish a condition of things which would insure a verdict in the direction sought. While, were the question submitted to us in the first instance, we might and probably would have decided otherwise, yet the jury, to whom the questions of fact were submitted, have been convinced that the theory of facts contended for and testified to by defendant and his witnesses was the correct one. The defendant testified clearly to the warranty, and that the harvester did not comply therewith. As to the warranty, he is in part corroborated by his wife, who was present, and who testified that plaintiff told them that the harvester “would give satisfaction in all things.” As to the failure of the machine to do the work required of it, he is corroborated by the witnesses Heye, Koop, Willman, Blair, and Brady. All testified with more or less directness to the failure of the harvester when tried in the field.
The machine was bought in 1883. The notes were executed in the fall of that year,--after the harvesting season,--and the machine was not returned until in July, 1885,--about harvest time. These facts, unexplained, are inconsistent with the idea of good faith on the part of defendant, but his explanationwas submitted to the jury, and they found it sufficient. This was that the season of 1883 was a wet one, and such a trial could not be made as was satisfactory to the plaintiff, and at his request it was retained for trial another year; that the notes were given with the express understanding that they were to be held subject to such trial; and that in the harvest of 1884 the harvester failed to perform, and due notice was given to plaintiff, but that at plaintiff's suggestion defendant did not return it, and new trials were made, a new binder attachment provided, and additional trials made until defendant took another machine and cut the grain. If the jury believed the testimony of defendant and his witnesses, which they seem to have done, they were justified in finding as they did.
It is objected that there was error in the instructions given to the jury by the court. The fourth paragraph was as follows: ...
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