Grisinger v. Hubbard

Decision Date16 March 1912
PartiesW. M. GRISINGER, Doing Business as the ORCHARDIST SUPPLY COMPANY, Respondent, v. D. R. HUBBARD, Appellant
CourtIdaho Supreme Court

APPEAL-SETTLEMENT OF REPORTER'S TRANSCRIPT-RIGHT TO OPEN AND CLOSE-SALE OF FRUIT TREES-WARRANTY-DAMAGES FOR BREACH OF WARRANTY-JURY'S DUTY TO FOLLOW INSTRUCTIONS.

(Syllabus by the court.)

1. Under the provisions of Rev. Codes, sec. 4434, as amended by chap. 119, Laws of 1911, p. 379, a party appealing and desiring to procure a review on appeal to the supreme court of any ruling of the district court, made during the trial or the sufficiency of the evidence to sustain the verdict or decision in an action or special proceeding as the same appears in the transcript of the testimony and proceedings including the instructions given or refused and exceptions thereto on the trial or such part thereof as may be necessary, in lieu of preparing, serving and procuring the settlement of a bill of exceptions should procure a transcript of the stenographer's notes and have the same settled and allowed by the trial judge, in accordance with the provisions of subd. 3 of said section.

2. The burden of proof, with its incident right to open and close naturally and necessarily is in the first instance with the plaintiff or party who initiates the action, suit or proceeding, and remains with such party so long as it continues incumbent upon him to make any proof whatever. When the defendant, either by an admission in express and absolute terms or by refraining from denial of the plaintiff's cause of action and alleging affirmative matter in avoidance of it, renders it wholly unnecessary for the plaintiff to give any evidence whatever to have a complete recovery of all that he claims, the burden and right are with the defendant.

3. The instructions contained in the record in this case examined and held to be a correct statement of the law as applicable to the facts of this case.

4. An implied warranty arises out of a state of facts which show the intention of the parties to be that the article ordered is of the kind and quality ordered and fit and suitable for the purpose for which it is ordered.

5. Where a nurseryman grows fruit trees for the purpose of selling to persons desiring to cultivate a commercial fruit orchard with a view of raising fruit for commercial purposes, he is presumed to have produced such young fruit trees for the purpose of developing into commercial trees; that is, trees that will produce fruit suitable for commercial purposes; and in selling such trees for that purpose the nurseryman intends that they shall be suitable and adapted to the purpose for which they are sold, and be of the kind and quality which will produce the purpose for which they were originally planted, and in such a physical condition that they will grow after being transplanted, if ordinary care and attention is given them in their planting and cultivation.

6. Where a person desiring to plant a commercial apple orchard orders fruit trees from a nurseryman and gives direction as to the kind and number, and the nurseryman fills the order and ships the trees to the place of delivery, the fact that the purchaser accepts the trees upon their delivery does not waive the warranty, but the warranty survives the acceptance; and where the trees upon their arrival at the place of delivery are found to be in bad condition, unfit for planting and not likely to grow, in whole or in part, the purchaser may reject them, or receive them and rely upon the warranty.

7. Where fruit trees are received under an implied warranty as to their condition and likelihood to grow, and the purchaser cannot definitely determine whether they are in such condition at the time of delivery, the purchaser has the right to receive them and ascertain whether they are in a good or bad condition or will grow if given proper care, and by so receiving such trees the purchaser is not precluded from recovering upon such warranty.

8. Where the verdict of the jury is not supported by the evidence and is contrary to the law applicable to the facts alleged and proven and covered by the instructions given, the verdict will be reversed.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl. A. Davis, Judge.

An action to recover for the purchase price of fruit trees. Judgment for plaintiff. Reversed.

Judgment reversed, and a new trial granted. Costs awarded to the appellant.

George H. Rust, for Appellant.

A verdict against the instructions of the court should be set aside. (Estee's Pleading (4th ed., Boone), sec. 4919, note 427; Farley v. Budd, 14 Iowa 289.)

The jury cannot disregard the instructions of the court even though erroneous. (Emerson v. Santa Clara County, 40 Cal. 543; Aguirre v. Alexander, 58 Cal. 30; Loveland v. Gardner, 79 Cal. 321, 21 P. 766, 4 L. R. A. 395, Murray v. Heinze, 17 Mont. 353, 42 P. 1057, 43 P. 714.)

Where the jury acted under a mistaken impression as to the legal effect of evidence, or in a total disregard of it, a new trial will be granted. (Estee's Pleading (Boone, 4th ed.), sec. 4916, note 396; Minturn v. Burr, 20 Cal. 48; Fulkerson v. Bollinger, 9 Mo. 838; Moran v. Bogert, 16 Abb. Pr., N. S. (N. Y.), 303.)

For decisions of this court, where a new trial has been ordered for insufficiency of the evidence to justify the verdict, see Harkness v. Smith, 3 Idaho 221, 28 P. 423; Farmers' Co-op. Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481; Mcguire v. Grangeville Sav. & Tr. Co., 19 Idaho 635, 115 P. 18; Say v. Hodgin, 20 Idaho 64, 116 P. 410.

Acceptance of the goods does not waive the warranty, and the warranty survives the acceptance thereof. (35 Cyc. 423, 429, 430; Muller v. Eno, 14 N.Y. 597; Getty v. Rountree, 2 Pinn. (Wis.) 379, 54 Am. Dec. 138, Northwestern Cordage Co. v. Rice, 5 N.D. 432, 57 Am. St. 563, 67 N.W. 298.)

Karl Paine, for Respondent.

The verdict is not contrary to the instructions, and the trial court was right in denying appellant a new trial on this ground. (1 Spelling, New Trial and App. Practice, pp. 432, 433.)

In a sale of goods, although for a fair price, there is no implied warranty of quality or soundness, the law presuming that a buyer who fails to exact an express warranty relies on his own judgment. The rule of caveat emptor is therefore applied, especially where there has been an inspection or an opportunity to inspect, or the buyer's knowledge or opportunity for knowledge of the defects equals that of the seller. (35 Cyc. 397.)

"On a sale of seeds there is an implied warranty that the seeds are fit to sow and will germinate. . . . But if a particular kind of seed is purchased by name, the warranty implied is only that the seed is of the kind designated, and there is no warranty that the seed will germinate or is fit for the intended purpose." (35 Cyc. 409; Gardner v. Winter, 117 Ky. 382, 78 S.W. 143, 25 Ky. L. Rep. 1472, 63 L. R. A. 647.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This action was brought by the respondent to recover from the appellant the sum of $ 136, alleged to be due as the purchase price of certain fruit trees alleged to have been sold and delivered by respondent to appellant. Answer was filed and the cause was tried to a jury and a verdict rendered in favor of the respondent for the sum of $ 156, and judgment was rendered thereon for said sum. A motion for a new trial was made and overruled, and this appeal is from the judgment and the order overruling the motion for a new trial.

A motion was made in this court to dismiss the appeal from the judgment because it was not perfected within sixty days after the entry of said judgment. This motion was confessed by counsel for appellant and the appeal from the judgment is therefore dismissed. A motion was also made to strike the reporter's transcript from the record, for the reason that the same was not settled by the court. It was admitted upon oral argument that there was no certificate of the trial court attached to the reporter's transcript settling such transcript, and application was made to this court upon such hearing for permission to file a certificate of the district judge in which the trial judge certified that he had examined the reporter's transcript of the evidence as certified by George F. Nicklaus, official court reporter, and by the clerk of the district court, and that said reporter's transcript contains all of the evidence considered by the trial court upon the hearing of the motion for a new trial, and that the judge settled and allowed the same as a true and complete copy of said evidence, and that upon the hearing of said motion for a new trial he considered each, every and all of the papers and files mentioned in the clerk's certificate to the transcript and contained in the clerk's transcript, and that the reporter's transcript and the said clerk's transcript contained copies of all the evidence and all the papers and files in the action considered on the hearing of the motion for a new trial.

Rev Codes, sec. 4434, as amended by chap. 119, Laws of 1911, p. 379, provides: "Any party desiring to procure a review on appeal to the supreme court of any ruling of the district court made during the trial, or the sufficiency of evidence to sustain the verdict or decision, in an action or special proceeding, may, in lieu of preparing, serving, and procuring the settlement of a bill of exceptions as in this chapter provided, procure a transcript of the testimony and proceedings, including the instructions given or refused, and exceptions thereto, on the trial, or such part thereof as may be necessary, in the following manner." Then follow provisions for procuring the...

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