Halliday v. Briggs

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

18 N.W. 55

15 Neb. 219

ALBERT HALLIDAY, PLAINTIFF IN ERROR, v. B. B. BRIGGS, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 19, 1883

ERROR to the district court for Gage county. Tried below before WEAVER, J.

AFFIRMED.

Colby & Hazlett and A. H. Babcock, for plaintiff in error. Third instruction. 1 Hilliard Torts, 11, 12, 34. Pomery Rem. § 559. 1 Parson's Cont., 576, n. "h." Miller v. Nichols, 5 Neb. 478. Little v. Woodworth, 8 Id., 281. Fourth instruction. Smith v. Justice, 13 Wis. 674. Hilliard Sales, 342.

J. E Bush, J. N. Rickards, and Hurley & Crane, for defendants in error, cited: Adams v. Johnson, 15 Ill. 345. Hawkins v. Berry, 5 Gil., 36 (Ill.) Towell v Gatewood, 2 Scam., 23 (Ill.) Hahn v. Doolittle, 18 Wis. 196. Smith v. Justice, 13 Wis. 671. Reed v. Hastings, 61 Ill. 266. Carondelet Iron Works v. Moore, 78 Ill. 65. Baker v. Henderson et al., 24 Wis. 509. Shakelton v. Lawrence, 65 Ill. 175.

OPINION

LAKE, CH. 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 purchase, the defendant warranted the horses to be "all right, sound and free from disease," and that the "plaintiff, relying upon said warranty, purchased said horses from the defendant for the sum of sixty dollars," 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 the 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 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 testify 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 vendor as to the quality 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 thirty dollars 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 others amounting to a warranty. Therefore the question of whether he did, or 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 instruction asked 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 confounds the distinction between an action on a contract of warranty, and one for deceit in making fraudulent representations," etc. We do not think the instruction is open to this criticism. In Benjamin on Sales § 613, in speaking on the subject of warranty, language almost identical with that of this instruction is used. It is there said that, in determining whether a warranty were intended, "a decisive test is, whether the vendor assumes to assert a fact...