Halliday v. Briggs

• Decision Date: 19 December 1883
• Citation: 15 Neb. 219,18 N.W. 55
• Parties: HALLIDAY v. BRIGGS.
• Court: Nebraska Supreme Court

15 Neb. 219

18 N.W. 55

HALLIDAY

v.BRIGGS.

Supreme Court of Nebraska.

Filed December 19, 1883.

Error from Gage county.

A. H. Babcock and Colby & Hazlett, for plaintiff.

Bush & Rickards, for defendant.

LAKE, C. J.

This was an action on an alleged warranty in the sale of two horses by the defendant to the plaintiff. It was alleged in the petition, and denied in the answer, that, as an inducement to the purchaser, the defendant warranted the horses to be “all right, sound, and free from disease,” and that the plaintiff, relying upon said warranty, purchased the said horses from the defendant for the sum of $60, etc.; that the “horses at the time of the sale were diseased and unsound in this:” that both of them “had a contagious and infectious disease, known as Texas mange or Spanish fever, of which disease one of said horses soon after said purchase died, and the other became worthless,” etc. The trial resulted in a verdict and judgment for the defendant. There was a motion for a new trial, which was overruled, and several questions thus made are brought here for review.

The first of the errors assigned is that the verdict is not supported by the evidence. We think it is. For, even conceding that the defendant used the language imputed to him by the plaintiff and his witness Pace, who alone testified to it, the jury under the circumstances, may well have believed it to have been intended and understood as the mere expression of an opinion, and not as a warranty; especially so in view of the fact that there was not a syllable of testimony showing it to have been relied on in making the purchase. The rule is that to make a representation of the thing sold a warranty it must have been relied on by the vendor. Hahn v. Doolittle, 18 Wis. 196;Smith v. Justice, 13 Wis. 600;Reed v. Hastings, 61 Ill. 266;Whitney v. Sutton, 10 Wend. 413;Little v. Woodworth, 8 Neb. 281. According to the plaintiff's testimony the words constituting the alleged warranty were used under these circumstances.

The plaintiff, it seems, offered for the horses a less price than was asked. This the defendant refused, saying that the plaintiff had picked out “two of the best in the herd;” that they were “sound and all right, and he would not take any less” than the price he had offered them for, which was $30 each. It does not appear that the soundness of the horses was questioned, nor that the subject of warranty was mentioned by the plaintiff. He went into the herd and selected two that pleased him, and it is pretty clear that he acted on his own judgment. But even if it were shown that the plaintiff really purchased on the strength of what he claims the defendant said, it is doubtful whether it amounted to a warranty, under the circumstances. At all events, a court would not be justified in holding that it did against the finding of a jury. But, in addition to this, the defendant swore positively that he did not use the words charged, nor any other amounting to a warranty. Therefore, the question of whether he did or did not was one peculiarly for the jury to determine. Blackburn v. Ostrander, 5 Neb. 219.

It is also claimed that the court erred in giving to the jury the third instructionasked by the defendant. It was in these words: “The jury are instructed that, while it is true, if the seller of personal property asserts as facts anything regarding its qualities, and concerning which the buyer is ignorant, and the purchaser relies on the statement in making the purchase, the assertion will amount to a warranty of the fact asserted, still it is also true that if the vendor merely states an opinion, or gives his judgment upon a matter of which he has no special knowledge, and upon which the buyer also might reasonably be expected to have an opinion and to exercise judgment, this is not a warranty.”

The first proposition in this instruction states the law correctly. See the authorities supra. Indeed, we do not understand that its soundness is questioned. But it is claimed that the second proposition “is misleading, and...