Dunn v. Bushnell
| Citation | 88 N.W. 693,63 Neb. 568 |
| Parties | DUNN v. BUSHNELL. |
| Decision Date | 08 January 1902 |
| Court | Supreme Court of Nebraska |
1. It is not error for the trial court to refuse instructions requested, when every principle involved in the requested instructions is fairly and fully given by the court on its own motion.
2. Where seed is purchased on a warranty that it is of a certain kind and quality, and such seed proves to be of an inferior kind and quality, and is planted without the knowledge of its inferior quality, the value of a crop such as should have been produced by the seed if it had conformed to the warranty, deducting the expense of raising the crop and the value of the one in fact raised, is a proper measure of damage for the breach of such warranty.
3. Where seed is purchased on a warranty as to its kind and quality, and the purchaser of such seed discovers that it is of an inferior quality to that warranted, he may retain the seed, and recover as damages the difference between the purchase price of the seed as warranted and the market price of the seed which he actually received.
4. Oliver v. Hawley, 5 Neb. 439, distinguished.
Commissioners' opinion. Department No. 2. Error to district court, Lancaster county; Holmes, Judge.
Action by David I. Bushnell against W. H. H. Dunn. Judgment for plaintiff, and defendant brings error. Reversed.Tibbets Bros. & Morey, for plaintiff in error.
Doyle & Stone, for defendant in error.
The plaintiff in the lower court sued the defendant on a promissory note. The defendant answered, admitting the execution and delivery of the note, and alleging that it was given in part payment of the purchase price of a quantity of hemp seed purchased from the plaintiff. He alleged that the hemp seed was warranted by the plaintiff to be first-class hemp seed, equal in quality to first-class Kentucky hemp seed, and seed which would, under proper conditions, raise a first-class crop of hemp. He also alleged that he relied solely on the warranty of the plaintiff in the purchase of the seed; that the seed was of an inferior quality; that it was sowed and the crop was cultivated in a good and husbandlike manner; and that, because of the inferior quality of the seed, he raised less than a half crop of hemp from the land sowed with the seed purchased from the plaintiff,--and prayed damages on his counterclaim for the difference in the price of the crop raised from the seed sold him by plaintiff, and the price of a crop which would have been raised from seed of the quality which he alleged was warranted to him by the plaintiff. Plaintiff replied to this answer by a general denial. A trial was had to a jury. Plaintiff recovered judgment for his note and interest, and defendant brings error to this court.
Plaintiff in error, who will be herein designated as the “defendant,” alleges error in the trial of the cause in the court below in the exclusion of evidence, and in the refusing and giving of instructions. An examination of the record leads us to the conclusion that there was no prejudicial error committed by the trial court in the exclusion of evidence, and, although some of the instructions requested by the defendant and refused by the court contained correct propositions of law, we do not think that the trial court erred in their refusal, for the reasons that the principle announced in each one of the refused instructions was fairly and fully embodied in the instructions given by the court on its own motion.
The objection urged against the sixth paragraph of instructions given by the court on its own motion presents a more serious question, and one which requires a careful perusal of the evidence and pleadings, in determining whether or not it was warranted under the issues in this case. The instruction is as follows: “(6) If, on the other hand, you find and believe from the evidence that the defendant had knowledge of the inferior character of the seed before it was sown, in event you believe the same was inferior, but, notwithstanding such knowledge, retained the same, and used it for the purpose for which it was purchased, then and in that event he could not recover on his counterclaim in this case, but would be deemed, in law, to have waived his right to rely upon the representations of the plaintiff, in event you find any were so made; and the plaintiff would be entitled to recover the full amount of the note sued on together with interest from the date thereof.” The first question to be...
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