Thorne v. Mcveagh

• Decision Date: 30 September 1874
• Parties: ALEXANDER THORNE et al.v.FRANKLIN MCVEAGH et al.
• Court: Illinois Supreme Court

75 Ill. 81

1874 WL 9193 (Ill.)

ALEXANDER THORNE et al.

v.FRANKLIN MCVEAGH et al.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action of assumpsit, brought by Franklin McVeagh, Wayne McVeagh, John B. Raymond and Henry C. Bannard, partners, against Alexander Thorne and John Thorne, partners, to recover damages on a breach of warranty in a lot of hams sold by the defendants to the plaintiffs. A trial was had resulting in a verdict and judgment in favor of the plaintiffs for $2,793. The hams sold weighed 20,020 pounds, and the price was 12 1/2 cents per pound. The purchasers had made a sale of 20,000 pounds of hams of the first quality at 13 1/2 cents per pound.

Messrs. MONROE, BISBEE & GIBBS, for the appellants.

Messrs. HAWES & LAWRENCE, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was assumpsit, in the Superior Court of Cook county, to recover of defendants the price paid for a quantity of smoked hams, together with the freight on the same to Salt Lake City, and the profits of resale which plaintiff would have realized had the hams proved of the quality represented. A recovery was claimed on the allegation that the quality of the hams was warranted to be “first class,” which they proved not to be.

There was a verdict and judgment for the plaintiffs; a new trial was refused, and defendants appeal.

The principal question for the jury was, as to the terms of the contract. Was there a warranty of the article sold? The parties were their own principal witnesses, and there was a conflict in their testimony. We shall not remark upon the testimony, further than to say the weight of it is most clearly with appellees on all the points raised. These hams were purchased as and for first-class hams, as good as any in the Chicago market, and were known by the seller to be purchased to fill a contract at Salt Lake City for fresh hams. The very fact they were intended for that market, to reach which the freight was a very considerable item, is a strong persuasive argument in support of appellee's proof, as a second-rate article would not bear that expense.

The proof is conclusive these hams were almost worthless, not properly cured, in bad condition when cured, and the sale thereof as first class a fraud. It was part of the contract the seller should ship them to Salt Lake City, the purchaser having at no time seen the article, relying solely on the representations of the seller that they were first class. The only question outside of the evidence is as to the damages, and herein, of the instruction on that point. It is claimed by appellants the jury were misdirected on this point.

The following is the instruction as given, the last clause of it being the objectionable part in the view of appellants:

“If you believe, from the evidence, that the defendant, Alexander Thorne, represented to the plaintiff, Raymond, that the hams in question were first-class hams, equal in quality to any brand of hams made in this market, and that such representation was made by Thorne with the intention thereby of warranting the hams to be of such quality, and to induce the plaintiff to buy the same, and that Reynolds purchased said hams relying upon such representation as a warranty of the quality, and that at the time of purchasing the hams they were not of the quality represented, but were of a poor, inferior and bad quality, then your verdict will be for the plaintiffs. And upon the question of damages, the court instructs you that, if you believe from the evidence they, at the time of such sale to plaintiffs, had a contract for the resale of said hams to one Davis, of Salt Lake City, and that they had sold the same as hams of the quality aforesaid, and that, at the time of the sale to the plaintiffs, the defendants, Thornes, had knowledge of such contract of resale, and...