Miamisburg Twine & Cordage Co. v. Wohlhuter

• Citation: 71 Minn. 484
• Decision Date: 09 February 1898
• Docket Number: Nos. 10,868 - (238).,s. 10,868 - (238).
• Parties: MIAMISBURG TWINE & CORDAGE COMPANY v. J. F. WOHLHUTER and Another.<SMALL><SUP>1</SUP></SMALL>
• Court: Supreme Court of Minnesota (US)

Page 484

71 Minn. 484

MIAMISBURG TWINE & CORDAGE COMPANY v. J. F. WOHLHUTER and Another.¹

Nos. 10,868 - (238).

Supreme Court of Minnesota.

February 9, 1898.

Appeal by plaintiff from an order of the district court for Freeborn county, Whytock, J., denying its alternative motion for judgment notwithstanding the verdict or for a new trial, after a verdict for $220 in favor of the defendants. Affirmed.

Ripley & Brennan, for appellant.

John A. Lovely, W. E. Todd and H. C. Carlson, for respondent.

START, C. J.

Action on a promissory note for $660, given for a part of the purchase price of twine. The answer set up a counterclaim to the effect that the twine was represented and warranted to the plaintiff to be of good material, of pure Manila, of first-rate quality, and in accordance with the sample exhibited to the defendants at the time of the sale; that there was a breach of the warranty, whereby the defendants sustained damages in the sum of $1,200. The reply denies that there was any warranty or sale by sample. Verdict for the defendants for $220. The plaintiff appealed from an order denying its alternative motion for judgment or a new trial.

1. The plaintiff claims that the sale was by sample, and not by warranty, or, if it should be held that there was an express warranty, that it applies only to defects which were not apparent in the sample, and would not survive the acceptance, except as to such defects. The evidence was sufficient to establish the warranty claimed, and a breach thereof, but the plaintiff claims that the answer alleges only a sale by sample, and that there is no evidence that the twine delivered did not correspond with the sample.

The allegations of the answer in this respect are in these words:

"That, to induce the said defendants to purchase the said twine, the said plaintiff represented that the said twine was of good material, and was of the same quality and material as the sample which was exhibited to said defendants; and that the defendants, relying upon the statements of said plaintiff that the said twine was of pure Manila of first-class quality, and in accordance with the sample exhibited to said defendants at the time that they were so induced to purchase the same, gave an order for the said twine, and agreed that, in case the said twine was of pure Manila, and was in accordance with the sample exhibited to said defendants, at said time, that they, the said defendants, would pay therefor the full sum of twenty-three hundred and one and 40/100 dollars ($2,301.40).

"That, relying upon said representations of said plaintiff, and not otherwise, the said defendants gave an order for said twine, and, in case the same fulfilled all of the conditions and representations of the said plaintiff, who warranted and agreed that the said twine should be as represented, and in accordance with said sample, that they, the said defendants, would pay therefor the sum of twenty-three hundred and one and 40/100 dollars ($2,301.40)."

These allegations are to the effect that the twine was not only sold by sample, but by description as well, with an express warranty that it should correspond with both the description and the sample. In such a case it is not sufficient that the bulk of the goods corresponds with the sample, if the goods do not also correspond with the description, for there is a twofold warranty of conformity to sample and quality; and the vendee may retain the goods, and rely upon his...