Buchanan v. Laber

• Decision Date: 01 August 1905
• Citation: Buchanan v. Laber, 39 Wash. 410, 81 P. 911 (Wash. 1905)
• Parties: BUCHANAN v. LABER et al.
• Court: Washington Supreme Court

81 P. 911

39 Wash. 410

BUCHANAN v. LABER et al.

Supreme Court of Washington

August 1, 1905

Appeal from Superior Court, Lincoln County; W. O. Chapman, Judge.

Action by Eugene Buchanan against Philip Laber and Daniel Worby copartners. From a judgment setting aside a verdict and granting a new trial, plaintiff appeals. Affirmed.

H. N Martin and J. T. Mulligan, for appellant.

H. A P. Myers, for respondents.

HADLEY J.

This is an action to recover the contract price of a gasoline engine which it is alleged was sold by the plaintiff to the defendants. The answer alleges that the defendants ordered of plaintiff one 12-horse power Flour City traction engine, and that the same was afterwards delivered to them at Creston Wash.; that the engine was warranted by the plaintiff to be built of good material, and capable of developing 12-horse power at all times when in use; that it was not capable of developing said amount of power; that it was not built of good materials, as warranted, and that the materials were put together in an unworkmanlike manner; that it constantly leaked gas, and was of no value whatever; that the defendants notified plaintiff that they desired a test made of the engine before accepting it, and that in response thereto the plaintiff and an expert, an employé of the manufacturer, went to Creston to make such test; that the test failed to prove that the engine was capable of developing 12-horse power, and that both the plaintiff and the expert there admitted that it was defective; that it leaked gas and was not up to the standard called for by the warranty. The material averments of the answer are put in issue by the reply. The cause was tried before a jury, and resulted in a verdict for the plaintiff. The defendants moved that the verdict be set aside and for a new trial. The motion was granted, and the plaintiff has appealed.

It is assigned that the court erred in setting aside the verdict and granting a new trial. Affidavits were submitted in support of the motion for new trial to the effect that during the trial one of the jurors was on several occasions engaged in conversation with the appellant when no others were present; that, after the evening meal of the day on which the trial was finished, the appellant and said juror drank together at the bar of the Vendome Hotel; that about noon of the same day the appellant and both respondents had taken a drink at said bar, and that appellant, seeing said juror in the lobby of the hotel, called to him, and in response thereto the juror came into the barroom, and appellant then treated him to a drink, and paid for the same; that this was done without the suggestion or consent of respondents. Respondents also call our attention to another affidavit made by a juror to the effect that after the verdict had been signed by the foreman as a sealed verdict, about 11 o'clock at night, the jury separated, and 9 or 10 of them were then treated to drinks by appellant's counsel, and in appellant's presence. A motion was made to strike this affidavit on the alleged ground that it tended to impeach the verdict. The court filed a written opinion in deciding the motion for new trial, and referred to matter contained in the juror's affidavit as though it might have been considered with the rest of the affidavits. Later, however, an additional written opinion was filed, to the effect that the court had overlooked the motion to strike the juror's affidavit, and the motion to strike it was granted. But the court stated that the decision by which the new trial was granted was not based upon that affidavit. The juror's affidavit is therefore not before us for consideration, since it was stricken at appellant's request, and the appeal of the latter does not bring that subject here for review. In view, however, of what is contained in...