Earle v. Boyer
| Decision Date | 10 January 1927 |
| Docket Number | 88 |
| Citation | 289 S.W. 490,172 Ark. 534 |
| Parties | EARLE v. BOYER |
| Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; James H. McCollum, Judge; affirmed.
Judgment affirmed.
Hardage & Wilson, for appellant.
John H. Crawford and Dwight H. Crawford, for appellee.
This suit was instituted in the circuit court of Clark County by appellee against appellant to recover damages in the sum of $ 225 on account of a sale and purchase of "Japanese Seeded" cane seed, intended to grow cane for making molasses, which proved worthless for that purpose. It was alleged in the complaint that appellants sold appellee seed which they represented to be a variety of sorghum known as "Japanese Seeded," suitable for making molasses that appellee purchased said seed to grow cane to make a crop of molasses, and that appellants knew appellee's purpose in buying the seed at the time of the sale; that said seed was not "Japanese Seeded" sorghum seed, but was seed of a variety of plant without juice, and worthless for making molasses.
Appellants filed an answer, denying seriatim the allegations in the complaint.
The cause was submitted to a jury upon the pleadings, the testimony adduced by the respective parties, and the instructions of the court, which resulted in a verdict and consequent judgment in the sum of $ 100 against appellants from which is this appeal.
It will be observed that the allegations in the complaint were broad enough to support a recovery either upon an express or implied warranty.
The testimony introduced by appellee tended to support the allegations of his complaint, and that introduced by appellants tended to disprove each and every material allegation in the complaint.
Appellants' first contention for a reversal of the judgment is that the court erred in giving instruction number one, which is as follows:
"If you find from a preponderance of the evidence that the defendants warranted the seed sold to plaintiff to be Japanese Seeded cane seed, and that the plaintiff, in reliance on said warranty, bought and planted said seed and cultivated the crop raised therefrom; and if you further find that the seed sold to plaintiff was not Japanese Seeded cane seed and was unfit for growing cane to make molasses, you are told that the plaintiff is entitled to recover from defendants a sum equal to the value of a crop at maturity which would have been raised from Japanese Seeded cane seed, less the value of the crop actually raised and the cost of cutting the same and having it made into molasses."
The first attack made upon the instruction is that it failed to tell the jury that, before appellee could recover, he must have relied solely upon appellants' alleged warranty. This instruction related to the alleged express warranty upon which appellee...
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