Michaud v. Freischeimer

• Decision Date: 29 July 1895
• Parties: MICHAUD v. FREISCHEIMER.
• Court: Montana Supreme Court

41 P. 231

16 Mont. 472

MICHAUD v. FREISCHEIMER.

Supreme Court of Montana

July 29, 1895

Appeal from district court, Missoula county; Frank H. Woody, Judge.

Action by Joseph Michaud against George Freischeimer for breach of warranty. There was a verdict for defendant, and from an order granting a new trial he appeals. Affirmed.

Duis & Crouch, for appellant.

PEMBERTON C.J.

This is an action brought by plaintiff to recover of defendant the price paid for certain paint sold by defendant to plaintiff on a warranty that said paint was of first-class quality, and for damages occasioned by the alleged breach of said warranty. The answer admits the warranty as to quality, but denies that the paint was worthless, as alleged in the complaint. The damages are also denied. The case was tried to a jury, who returned a verdict for the defendant. The court on motion of the plaintiff, set aside the verdict, and granted a new trial. Defendant appeals from this order.

It appears from the evidence that plaintiff purchased of the defendant two half barrels of "slate roof" paint containing, respectively, 25 and 26 gallons, and one whole barrel of 58 gallons, at the price of 75 cents per gallon that said paint was warranted to be of first-class quality. This is admitted; also, that the price was paid. The plaintiff used the paint in painting roofs. He commenced his painting by using the paint in the two half barrels first. When that was consumed, he used that in the whole barrel. All the paint was used in painting the same roofs. The roofs were part tin and part cedar shingles. The paint contained in the two half barrels, within four or five days after being put on the roof, "curled up," "cracked," and blew off. That used out of the whole barrel on the same roofs did not do so, but remained. The paint from the two half barrels, used both on the tin and shingle roofs, "curled up," "cracked," and blew off. This did not occur when the paint in the whole barrel was used. All the paint on the roofs used out of the two half barrels, up to the point where the use of the paint in the whole barrel commenced, "curled up," "cracked," and blew off, so that that part of the roofs had to be repainted. That it was worth $25 to put the paint alleged to be worthless on the roofs; that the roofs were dry and in good condition to receive the paint; and that it was properly put on. There was evidence that all the paint was manufactured at...