Atkins v. Nicholson

• Decision Date: 31 March 1862
• Citation: Atkins v. Nicholson, 31 Mo. 488 (Mo. 1862)
• Parties: WILLIAM ATKINS, Respondent, v. DAVID NICHOLSON, Appellant.
• Court: Missouri Supreme Court

31 Mo. 488

WILLIAM ATKINS, Respondent,

v.DAVID NICHOLSON, Appellant.

Supreme Court of Missouri.

March Term, 1862.

1. It is error for a court to instruct a jury upon a state of facts which there is no evidence in the cause to sustain.

Appeal from St. Louis Law Commissioner's Court.

For statement see opinion.

George P. Strong, for appellants.

DRYDEN, Judge, delivered the opinion of the court.

This was an action commenced by Atkins against Nicholson, before a justice of the peace, on an account for three dollars and ninety cents, for six and a half bushels of worthless Irish potatoes, sold to plaintiff as “good potatoes.” On a trial before the justice, a verdict and judgment was recovered by plaintiff, and the defendant appealed to the law commissioner's court; where a trial anew was had, which resulted as before in a verdict and judgment for plaintiff, from which defendant has appealed to this court. The evidence on the trial, preserved in the bill of exceptions, shows the sale of a lot of potatoes by defendant's clerk to plaintiff, in store in defendant's warehouse; that some of the potatoes in the lot were sound and some unsound; that plaintiff had full and fair opportunity before purchasing to examine, and did in fact examine the lot carefully, separating the good from the bad, and, after purchasing, taking away such as he had selected as good, and leaving those he had rejected as bad. There was no evidence showing, or tending to show, that the sale was a sale by sample, or that there was any warranty as to the quality or soundness of the potatoes, or any representation on the subject, by the defendant or his agent; on the contrary, the reverse is expressly proved. The court, at the instance of the plaintiff, gave the two following instructions, viz:

1. If the jury believe from the evidence there was a warranty, either express or implied, of the soundness of the potatoes, and it turned out that they were not sound, but sold by defendant to plaintiff as sound, the plaintiff ought to recover.

2. If the jury believe from the evidence that the potatoes were bought or sold from a sample and that sample was good, and the lot or part of it unsound, then the plaintiff ought to recover for the unsoundness.

The court then, at defendant's instance, gave the following, viz:

1. If the jury believe from the evidence that the plaintiff saw and examined, or had the opportunity of examining the potatoes bought by him of the defendant, and that neither the defendant nor...