Mayer v. Dean

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 556,22 N.E. 261
• Parties: MAYER v. DEAN et al.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 556

22 N.E. 261

MAYER

v.DEAN et al.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from superior court of New York city, general term.

Action of Otto G. Mayer, against William G. Dean and Harris W. Dean to recover the contract price of a lot of mustard seed sold by plaintiff to defendants. There was a verdict and judgment for plaintiff, which was affirmed by the general term, and defendants again appeal.

Geo. H. Fisher, for appellants.

J. Hampden Dougherty, for respondent.

RUGER, C. J.

The plaintiff seeks to recover the contract price for a lot of mustard seed sold through a broker by him to the defendants. The defense, as stated by the answer, was that the sale was by sample, and that the bulk did not correspond with the sample, but was dirty, impure, and inferior to the sample. It also alleged that this dirt and impurity was not discoverable upon inspection, and that the plaintiff knew the seed was dirty and impure, and upon the sale fraudulently represented that the same was clean and free from dirt and impurity, with the view of cheating and defrauding the defendants, and to prevent such an examination of the seed as would have shown the dirt therein. Upon the trial a written contract of sale was proved, showing a sale by sample. The evidence clearly established that the bulk delivered corresponded with the sample; but it was also shown that the seed was dirty and impure, and that the plaintiff knew this fact. It was also proved, on the trial, that this impurity could be discovered by rubbing the grain in the hands or on white paper; but whether it was visible and apparent from mere inspection was, upon the evidence, a disputed question. The plaintiff's counsel, at the close of the evidence, moved that a verdict be directed in his favor, and the defendants made a similar motion on their own behalf. The latter motion was denied, and the defendants excepted. The defendants then moved that the case be sent to the jury. This motion did not state any question of fact which they desired submitted to the jury, and the motion was denied, to which decision the defendants excepted. The court thereupon directed a verdict for the plaintiff, to which direction the defendants excepted.

There was no error in these rulings upon the evidence as it stood; and, unless there has been some error in the exclusion or admission of evidence to the prejudice of the defendants, the judgment should stand. The defendants, however, claim that evidence offered by them tending to show that the contract of sale was obtained by fraudulent representations on the part of the plaintiff was improperly excluded. The case shows that the defendants on the trial offered to prove that the broker making the contract for the plaintiff represented that the seed proposed to be sold was clean and free from impurities. This evidence was objected to by the plaintiff, and excluded by the court, upon the ground that it tended to vary, enlarge, and contradict the contract of sale. To this decision the defendants excepted. There can be no question about the correctness of this ruling if the evidence merely tended to establish a warranty different from that expressed in the contract. The contract by its terms secured to the defendants a right to have the bulk of the goods sold correspond as to quality and appearance with the sample, (Hargous v. Stone, 5 N. Y. 73; Beirne v. Dord, Id. 95,) and the defendants were precluded by well-settled rules from showing by parol a more enlarged or different contract. The offer in this case, however, went further than this, and tended to show that the contract itself was procured by fraudulent representations. The representations attempted to be proved related to the character and quality of the thing offered for sale, and was material upon one of the defenses set up in the answer. The manifest tendency of such a representation was to throw the purchaser off his guard, and lead him to forego an examination which he might otherwise make. Under the evidence in this case it cannot be assumed, as matter of law, that these defects were visible or known to the purchaser, and it therefore became a question for the jury to determine whether the...